Board advisory committees

Meeting of the Legal Aid Ontario immigration and refugee law advisory committee on March 9, 2016

Committee members

John McCamus (Chair); Deyanira Benavides; Raoul Boulakia; Debbie Douglas; Rana Khan; Jennifer Hyndman; Gerri MacDonald; Toni Schweitzer; Andrea Sesum; Peter Showler; Maureen Silcoff; Christa Freiler (LAO Board liaison).

1. Welcome and introductions

The Chair opened the meeting and welcomed those present.

2. Minutes, September 28, 2015

The minutes of the September 28, 2015 meeting were approved as amended.

3. LAO business planning slide deck and discussion

The Chair presented highlights of the LAO updates and proposed priorities for 2017/2018 slide deck, noting that a new business planning cycle is beginning at LAO. The advisory committee meetings, which are aligned with business planning, focus on environmental scanning in the spring and discussion of potential new initiatives in the fall.

The committee was updated on recent developments at LAO.

The LAO Board has approved a proposal, discussed with the advisory committees in the fall, to post public versions of advisory committee minutes on the LAO website. No committee was opposed to this plan and most were enthusiastic. Consultations with the committees produced a number of suggestions that the Board has adopted as principles, including that:

  • the minutes will be circulated and approved before posting
  • confidential information will not be included
  • comments will not be attributed to individual members

  • names of members, but not contact information, will be listed

  • minutes will not record attendance.

The intention is to post the general slide deck that is provided to the committees online as well. While the original proposal called for two sets of minutes to be created, the public versions are so similar to the originals that in future it is likely that only one set of minutes will be written. If any confidential discussions take place, they would be reported to the Board in a covering memo.

LAO has a new President and CEO—David Field, whose public service career at the Ministry of the Attorney General included involvement in the creation of LAO. Mr. Field has also been a vice president at LAO. He was appointed following Bob Ward’s retirement in December.

The most exciting recent development at LAO continues to be expanded eligibility for legal aid. The slide deck illustrates the impact to date of the six per cent across-the-board increases that were implemented in November 2014 and April 2015, as well as the legal eligibility expansions that were introduced in June 2015. LAO anticipates issuing approximately 20,000 additional certificates in 2015/16 as a result of expanded eligibility, with the largest increases in the areas of criminal and family law. While refugee certificates are on the increase as well, this is not primarily the result of expanded financial eligibility, since Ontario has historically covered most refugee cases, but is due to other factors. Twenty per cent of the new eligibility funding has been provided to clinics, to support expanded clinic services. A third six per cent eligibility increase is coming into effect on April 1, 2016 and there is committed funding for a fourth year. LAO is hoping that there will be a commitment to additional years of funding in the new budget’s printed estimates.

LAO is participating in several justice system improvement initiatives. The Attorney General has established two justice roundtables, in family and criminal law, and LAO is participating in both. The roundtables are considering ideas for pilot projects, and LAO hopes that bail will become a centre of focus. An Ontario Court of Justice criminal modernization project, in which LAO is participating, is also underway. In February, LAO was invited to speak before a Senate committee looking into criminal justice system delay.

LAO has been developing strategies to improve its services provided to vulnerable client groups. The strategies tend to follow a general pattern: the Board approves development of the strategy, broad consultations take place, and then, based on those consultations a more detailed plan is developed and consulted on, and final, the strategy is implemented. Here is a summary:

  • The first of LAO’s client strategies was the Aboriginal Justice Strategy, now in its second five-year phase.

  • The new Mental Health Strategy is about to be announced after three years of consultations and development.

  • LAO is currently working on developing a Domestic Violence Strategy

  • The LAO Board has recently approved the development of a new Racialized Communities Strategy, as well as new strategies for bail and prison law.

  • A strategy for prison law test case work has also recently been approved.

The LAO updates and proposed priorities for 2017/2018 slide deck incorporates highlights of the current year’s business plan, including a summary of the business plan priorities, which were reviewed with the committees at the fall meetings.

LAO will be releasing a paper and consulting on transparency, which is one of this year’s business plan priorities. LAO’s accomplishments over the past year, in addition to eligibility expansion, include increasing Gladue report writing services and expanding its Alternative Fee Arrangement (AFA) program, which now covers eight per cent of certificates.

The business plan also includes the environmental scan, which is summarized in the LAO updates and proposed priorities for 2017/2018 slide deck. The environmental scan slides show the trends in the number of cases and legal aid services provided in each area of law. For example, the number of criminal law cases has been declining for several years, which has led to a decrease in the number of certificates issued. The environmental scan also looks at LAO’s data, showing that newer lawyers have been taking on a significant amount of legal aid work. The section of the scan that looks at international developments describes advances in the use of online technology to provide legal aid services. British Columbia’s Legal Services Society is introducing an online system based on the Dutch model described in the scan.

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

  • There was interest in the pending release of LAO’s Mental Health Strategy. The Strategy should not look to assign a single lawyer to look after all of a mental health client’s legal issues, as this would not be a workable plan for refugee clients. The committee was advised that the Strategy will not call for such an approach.

  • In its focus on transparency in the year to come, LAO should be cautious about moving to a SunShine List type of disclosure of clinic lawyers’ salaries and private bar lawyers’ earnings from legal aid. There are concerns about privacy and that this kind of disclosure (on the certificate side) could identify specific cases and clients. Also, some lawyers may who would choose to stop doing legal aid work if this kind of disclosure was required.

  • It was felt that one way to increase the number of lawyers entering into AFAs with LAO would be to reduce their administrative burdens. The impression is that AFA lawyers have to do the same amount of administrative work and docketing as certificate lawyers who are not on AFAs, though they do get the advantages of predictability and cash flow. Unless a lawyer has problems with billing, it may not be particularly advantageous to move to an AFA arrangement. LAO needs to ensure accountability but should rethink the amount of administrative work that lawyers on AFAs have to do.

4. Immigration and refugee services update and discussion

LAO’s Executive Lead, Refugee and Immigration Services – GTA (Greater Toronto Area), provided the committee with an update on LAO’s refugee and immigration services priorities.

The new panel standards are now 95 per cent implemented, and a new refugee panel management system is providing better oversight and support. There are three panel officers, each responsible for 110 to 120 panel lawyers.

LAO continues to develop its AFA program in the area of immigration and refugee law. Six current AFAs have been renewed and six more are being explored.

LAO continues to improve its training for staff and private bar lawyers. Eleven online training modules have been created and ten in person/webcast training sessions have been delivered. The mentoring program continues to grow, with 22 mentors and 40 mentees.

Although increased financial eligibility has not had much impact on refugee law certificates, several legal eligibility enhancements have been expanding access to justice in this area. Legal eligibility has been expanded for humanitarian and compassionate applications, deferrals and stays, Refugee Appeal Division (RAD) appeals and habeas corpus applications for long-term detainees.

LAO has been enhancing communication and improving stakeholder relationships through regular meetings and communications. The Refugee Lawyers Association (RLA) was thanked for its support in making LAO updates available through the RLA list serve.

One of LAO’s priorities is to manage its refugee program within budget, and LAO is concerned about growing costs. Certificate costs are significantly above forecast, with the largest increase in the RAD section. The committee’s advice is being sought on ways to contain costs.

An in-depth update was provided on implementation of the new panel standards. The process began in 2013 with consultations and is now nearly completed. 383 lawyers applied, most from the GTA. The pre-implementation panel had 444 members. As of March 9, 2016, 259 lawyers had been approved, some with conditions.

An independent evaluation will be conducted, and LAO will be tracking outcomes. LAO will be looking for better client outcomes at first instance, as well as greater panel knowledge and support, and a reduction in costs to LAO.

LAO has found that the most important lesson learned from this process is that quality monitoring needs to be continuous.

Regarding next steps, approximately 10 removal proceedings are underway or coming up. LAO will continue to get client feedback and engage with stakeholders, and will consider which panel to focus on next.

Members were urged to contact LAO if they become aware of any quality concerns. Clients, service providers and agencies can use LAO’s complaints process or call the anonymous LAO ethics hotline to report a complaint. Emails can also be sent to the Executive Lead, Refugee and Immigration Services – GTA. Arrangements can be made for an in-person meeting with LAO staff and an interpreter, as needed.

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

  • Members indicated continued support for the refugee panel standards initiative. LAO’s quality service efforts, which include the new panel standards and peer review process as well as its orientation, training and mentorship initiatives, are all good news. The training materials were described as excellent. Quality has been a longstanding problem in the refugee law area. Often the quality concerns are related to lack of effort rather than to lack of competence.

  • LAO should consider whether the re-empanelment process for the refugee bar may have discouraged some experienced, high quality lawyers from re-applying. There has been a substantial drop in the size of the refugee panel, from 444 to 259 members. The old panel was not a managed panel, so a drop was to be expected, but there is an access to justice concern if good lawyers have been turned off by the process and have decided not to re-apply. The RLA, or a group of RLA members who are members of the peer review committee, would be willing to work with LAO on ideas for identifying and reaching out to these lawyers.

  • It was suggested that, as an interim measure, LAO consider deferring panel removal for lawyers who might benefit from mentorship.

  • In evaluating its re-empanelment initiative, LAO should be cautious about equating successful outcomes with high quality of legal representation. Other factors, including a client’s country of origin (there can be tremendous variance from country to country), and individual Immigration and Refugee Board (IRB) members making decisions, can have an impact on whether or not an outcome is successful, and can make one lawyer’s “success” rate higher than another’s without having anything to do with quality of representation.

  • Members were concerned about whether it is difficult for clients who do not speak English or French to make complaints to LAO, and asked whether in such cases a lawyer or agency should report the complaint on behalf of the client. The point was also made that the LAO website’s anonymous ethics and compliance hotline page for reporting quality issues does not appear to be very user-friendly, and asks for a log-in.

  • Members provided suggestions for controlling the cost of refugee services:

    • It was suggested that the new panel standards and quality supports can help LAO to reduce costs by eliminating the need to do remedial work on cases that have been handled badly. However, these are likely to be downstream savings that will not be realized immediately.

    • It was suggested that LAO could reduce its translation costs by moving to a centralized translation service. There would be additional economies of scale if the service was made available across the board and not just to refugee lawyers. Quality is frequently an issue with translators and in refugee law there is often a need for last-minute translation because clients tend to bring things in on the day that they are due. Although it might not make sense to have translators on salary, a workable strategy could potentially be developed. Ideally, a centralized translation hub might include not only LAO but also social services, courts, and the police; such a hub would be able to address quality issues and reduce costs.

  • Members felt that there will continue to be an increase in the number of refugees arriving in Canada. The Alliance for Sustainable Legal Aid (ASLA) has written to the federal government to request more funding for refugee services and for vulnerable client groups. It was suggested that LAO consider a joint funding request rather than approaching the need for more federal funding in isolation. Also, if it is possible to mobilize people and do something in a more public way that captures attention, the results can be very positive.

5. Action items

  1. LAO will consider the accessibility of its complaints process from the perspective of a client who does not speak English or French.

  2. LAO will review the current panel membership and consider the issue of whether the re-empanelment process resulted in LAO losing some high quality lawyers who did not re-apply. A detailed communication to the bar will be prepared.

6. Other business

None raised.