Meeting of Legal Aid Ontario Immigration and Refugee Law advisory committee on October 10, 2018

Published: October 10, 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: Vicki Moretti, John Norquay, Catherine Bruce, Andrew Brouwer, Heather Morgan

2. Welcome and introductions

The meeting was opened and there were introductions around the table.

3. Minutes, April 23, 2018

The minutes of the April 23, 2018, meeting were approved.

4. Legal Aid Ontario update slide deck

Highlights of the Legal Aid Ontario Board Advisory Committees Fall 2018 Meetings: Legal Aid Ontario Updates and Business Planning slide deck were presented.

Committee members provided the following input and advice. The views expressed do not necessarily reflect the views of every member.

  • The opening of the new legal clinic, the Black Legal Action Centre, is anticipated with interest. It was noted that the clinic’s new Executive Director is an impressive and accomplished person. The planned amalgamation of the Welland and St. Catharines clinics is also interesting. The importance of maintaining client access from both communities was pointed out.
  • Legal Aid Ontario’s plan to develop a client portal was discussed. It is important to look at ways of making client access to Legal Aid Ontario easier. Presently, a lot of calls to the legal aid call centre are made from an agency, and it is time consuming for agency staff to wait with the client to complete this process. There was interest in whether, or how, the client portal could be accessed by clients in languages other than French and English.

5. Strategic Plan Update

An update was provided on Legal Aid Ontario’s longer term strategic planning process. The advisory committees were invited to participate in consultations over the summer and many members attended one of the planning sessions. Legal Aid Ontario’s Board, staff, and other stakeholders have also been consulted. Slides 18 and following in the slide deck provided to members identify, on a high level, the themes and strategic goals that have emerged from the consultation process. The strategic goals relate to having a client‑centred focus; engaging staff; emphasizing innovative services; demonstrating value for money; and effective collaborations.

A draft strategy will soon be ready to go to the Board. However, the process is not complete. How Legal Aid Ontario will be implementing the strategic plan, in terms of meeting the goals of the plan and developing specific initiatives, will be very important. These next steps, and the key initiatives that will support the strategic plan, will be discussed with the advisory committees.

6. 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.

The number of refugee certificates issued by Legal Aid Ontario continues to increase, exceeding forecasts. Certificate issuance has been affected by the increase in irregular border crossings, as well as other circumstances in the United States and globally. It is probable that Legal Aid Ontario will issue 15,000 certificates this year.

Legal Aid Ontario continues to follow events and developments that may impact service demand and cost. For example, in the United States, temporary protected status for some countries will be expiring, and the impact of this will be monitored. There is reportedly a plan being developed for triaging asylum seekers who are crossing the border into Quebec, and this is also of interest. There has been no recent news regarding this initiative. Legal Aid Ontario would appreciate any updates that members may be able to provide.

There has been good news about federal funding. Legal Aid Ontario submitted a business case for additional funding in June. The Federal government has confirmed that Ontario’s share of additional one‑time 2018‑2019 money will result in an overall total allocation of $16.9 M in federal funding for Ontario. Legal Aid Ontario expects to spend about $30M on its refugee services program this fiscal year.

Quarterly meetings are being held with the Refugee Lawyers Association. At the last meeting in September several issues were discussed, including discretion and granting of discretion on grounds of extraordinary circumstances. Legal Aid Ontario is looking at how it can make discretion more predictable and transparent for service providers, including through clarification of guidelines. Legal Aid Ontario is also working with the Refugee Lawyers Association to resolve issues related to certain matters that require more time or are inherently complex, such as where a service provider has many family members on the same certificate. Another issue raised is the current backlog of applications to join the panel. Legal Aid Ontario is working to streamline the empanelment process while at the same time ensuring quality.

Legal Aid Ontario’s Alternative Fee Arrangement pilot is coming to an end. The pilot involved entering into contracts with trusted service providers, based on their average historical billing patterns. It will be phased out gradually, within one year for sole practitioners, and two years for participating firms. The pilot was intended to reduce administrative red tape for lawyers and for Legal Aid Ontario. A decision was made to end the pilot because there was a low subscription rate and it was too expensive to maintain two parallel systems. Legal Aid Ontario heard that lawyers who already had a good administrative process in place for billing legal aid felt there was no real advantage to joining the Alternative Fee Arrangement program. The program did offer benefits to private practitioners, however, and Legal Aid Ontario will be reviewing lessons learned and thinking about how these benefits might be incorporated into some other kind of payment process in the future.

The Report of the Independent Review of the Immigration and Refugee Board, known as the Yeates report, was released late in June. The report acknowledged many inefficiencies in the asylum process. Legal Aid Ontario finds it encouraging that Yeates recommended fully considering the participation of counsel to ensure the efficiency of the system. The Refugee Law Office in Toronto provided a submission on the report and also participated by conference call in a Minister’s Roundtable consultation. The feedback of service agencies participating in that consultation was very similar.

Legal Aid Ontario has looked at the Yeates report and has identified some recommendations that will, if implemented, be likely to have an impact on current practice and expenditures. These include recommendations that would be likely to result in shorter hearings and fewer adjournments. Legal Aid Ontario is also interested in the views of the committee on recommendations that may be promising.

Legal Aid Ontario is concerned about findings in the recently released audit on long-term immigration detention reviews. The report recommended a dialogue with legal aid plans and suggested a federally funded legal aid services program, which would potentially support services such as duty counsel representation and provide consistency in services available across the country. The idea of a federally funded legal aid services program is promising. At the spring meeting there was a suggestion that Legal Aid Ontario consider placing duty counsel at ports of entry, and this is an interesting idea although it is expensive to have a full time presence in locations where one might not see the volume that is found in criminal courts. The same consideration would apply to detention hearings. However, several years ago when detainees were being held at Toronto East Detention Centre, the Refugee Law Office staff trained Scarborough court criminal duty counsel to assist at detention hearings there. There was no real chance to evaluate the effectiveness of this initiative because the detainees were moved to Lindsay shortly thereafter. A potential solution would be to cross train criminal duty counsel in locations where detention hearings are held.

Legal Aid Ontario recognizes that the hourly maximums for detention review work are low, and this is now on the radar and can be brought forward as an issue raised by the advisory committee, although expansion is not planned at this time due to rising costs in the refugee services program. These are important issues that affect people’s liberty. The best solution would be the federally funded program recommended in the audit report. If there are other solutions that the committee can suggest, Legal Aid Ontario would consider them.

A brief overview of follow up on the Committee’s advice was provided. It was noted that Legal Aid Ontario is now represented on a working group focused on designated representative issues and the hope is that, through this collaboration, better ways will be found to serve these clients. With respect to advice provided on funding mandamus applications, although it is not possible to fund each application, Legal Aid Ontario looks at these on a case by case basis and will provide funding based on compelling need. The committee’s advice and suggestions are valuable to Legal Aid Ontario and the committee has provided many good ideas.

It was announced that the Vice President, Greater Toronto Area will be retiring in December. The Chair thanked her, adding that she will be greatly missed.

Committee members provided the following input and advice. The views expressed do not necessarily reflect the views of every member.

  • Members confirmed that discretion continues to be an area of frustration for the private bar. Discretion requests are often refused. It is particularly frustrating when no explanation for the refusal is provided.
  • Although the Alternative Fee Arrangement program had downsides it also provided benefits to the private bar. Some lawyers struggle with the administrative work of billing legal aid, to the point where they will absorb costs themselves rather than go through the red tape. It would be a good thing if Legal Aid Ontario could find another way to offer lawyers some of the benefits that the Alternative Fee Arrangement program offered. If Legal Aid Ontario is having these discussions it would be helpful for them to consult with lawyers, to get their perspective on what worked well for those who took part in the pilot as well as on why some lawyers may have chosen not to participate.
  • It was noted that some of the Yeates report recommendations are encouraging and enlightened, such as, in particular, providing the Refugee Protection Division with jurisdiction to carry out Pre‑Removal Risk Assessments and to directly refer Humanitarian and Compassionate applications for consideration, rather than requiring the asylum seeker to wait for these processes to commence until they have reached the end of the runway. The upcoming federal election is likely to have an impact on implementation of recommendations requiring legislative amendment or overall structural change. However, there are things that could be done now without the requirement of legislative change. The main tool at the Immigration and Refugee Board’s disposal is its ability to expedite hearings. Expedited hearings were more common several years ago than they are now. It was suggested that board members may be reluctant to use this tool more often because what is currently referred to as an expedited hearing is a paper‑screening process, where they are unable to see the claimant.
  • There is a need to increase capacity to provide more assistance to persons in immigration detention. A federally funded program would be a good thing, but Legal Aid Ontario should not wait for this to happen if there is a way to do something right now. There are various options that could be considered, and they are not mutually exclusive; for example there is room for both a private bar roster model and a duty counsel model and both are needed. Legal Aid Ontario might want to consider an analysis of the different options, including a cost-benefit analysis based on the average length of time of a detention hearing; this could also be the basis of a business case for federal funding. Options discussed by the committee were:
    • A roster system for lawyers to sign up to be assigned to attend and cover the review hearings scheduled for the day at a given location. Legal Aid Ontario once had a system like this in place. Usually lawyers who signed up would get the call to do this once or twice a month, so there was no burnout for individual lawyers. The burnout factor is important to avoid, as it is difficult work going into prisons to see clients in detention. The roster system worked well and there were always enough lawyers available. This is a system that would work particularly well for legal aid if immigration officials could provide Legal Aid Ontario with a docket.
    • A duty counsel model. This could be an on‑site model if supported by the volume of work, or a model utilizing criminal duty counsel that are trained to represent clients at a detention hearing. An on‑site model would be ideal because one of the problems making it difficult to serve these clients is lack of access to the places where they are held. If someone was stationed there it could help with that. Having duty counsel on site, even a couple of days per week, could help with many issues that arise for clients including mental health issues.
    • Access to summary legal advice for people in immigration detention. People who are in detention need legal advice, and advice should be made available at the earliest opportunity. There could be different paths for providing advice. One option could be a telephone advice service, similar to the Brydges hotline service for persons in detention in the criminal context. There might be difficulties with this model, given the multiple barriers and vulnerabilities of these clients. There might also be limitations on the amount of advice that could be provided, given that the advice lawyer on the phone would not be able to see relevant documents. Another model would be to use duty counsel to provide in‑person advice. A third option would be a two‑hour advice authorization like the family violence advice authorization; this would also enable a lawyer to meet with the client.
    • Growing the pool of lawyers who do detention work by increasing the number of certificate hours for detention reviews. Few lawyers do this kind of work on a certificate because only three hours are covered. It essentially amounts to pro bono services and severely limits the number of lawyers who will do detention work.
    • Working with interested clinics and Student Legal Aid Services Societies to provide services. Several clinics have introduced new immigration services, including detention hearing services, with new financial eligibility funding. While clinics have tended to stay away from providing services for which certificate coverage is available, more would likely get involved on the immigration and even on the refugee side if the strict legislated timelines were to be relaxed as recommended in the Yeates report. Legal Aid Ontario could open a dialogue with clinics that have a basis in this work and are interested. Six Toronto clinics that have an immigration practice are now sharing access to a senior barrister who could be an excellent resource for clinics interested in taking on detention work. Student clinics like the Community and Legal Aid Services Program (CLASP) at Osgoode Hall Law School would be open to having their students work in this area, and the students are interested. One thing to keep in mind is that permission from the adjudicator is required in order for students to provide representation at hearings.

7. Action items

  1. Legal Aid Ontario will include the private bar in any future discussions of how the benefits of the Alternative Fee Arrangement pilot program to the private bar might be replicated through other processes, now that the pilot is ending.
  2. Legal Aid Ontario will consider the committee’s recommendation to increase the hourly maximum of three hours for detention review certificates.
  3. Legal Aid Ontario will also explore other potential ways discussed by the committee for better addressing the needs of clients in immigration detention. Possibilities include providing duty counsel services, providing access to summary legal advice, establishing a roster of panel lawyers to represent clients at detention review hearings, and working with interested clinics and Student Legal Aid Services Societies to deliver services.

8. Other business

None raised.