Board advisory committees

Meeting of Legal Aid Ontario immigration and refugee law advisory committee on October 12, 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, March 9, 2016

The minutes of the March 9, 2016 meeting were approved.

3. LAO business planning slide deck and discussion

The Chair presented highlights of the LAO Board Advisory Committees Fall 2016 Meetings: LAO updates and proposed priorities for 2017-2018 slide deck, containing updates on recent developments at LAO.

LAO is confronting an approximately $20 million deficit. Increased demand for refugee services has contributed significantly to this deficit, along with higher than anticipated expenses for LAO’s eligibility expansion program.

The provincial government has provided a total of $96 million in new funding for eligibility expansion since November 2014. Three six percent increases to LAO’s financial eligibility standard have made 1.4 million Ontarians eligible for legal aid, up from 1 million who were eligible prior to the first increase. The new funding could only be used to support the provision of services to newly eligible clients, and LAO heard that the six percent increases would be unlikely to absorb all of the available funding. After consulting with the province and with stakeholders, LAO introduced legal eligibility expansion in June 2015 to increase the types of cases that are eligible for legal aid coverage. LAO issued 24 percent more certificates last year than it did the previous year, and continues to issue certificates over budget. The greatest increases have been in certificates for minor criminal offences and domestic family law matters.

LAO has developed client strategies to improve the services that it provides to vulnerable and marginalized client groups. The first strategy was the Aboriginal Justice Strategy, which continues to implement new initiatives each year. It was followed by the Mental Health Strategy, which was launched in spring 2016 following a long consultation process. The Mental Health Strategy has introduced an impressive training program, developed with the assistance of the Mental Health Commission of Canada. It has been rolled out to LAO staff working in the area of criminal law. LAO has advised the national association of legal aid plans that the training can be shared and adapted to the needs of other legal aid plans across the country.

LAO is concerned about problems with the bail system in Ontario. Over half of the people incarcerated in provincial institutions are in pre-trial custody or awaiting sentencing. Bail and remand issues have been identified as a priority in the Attorney General’s mandate letter from the Premier. LAO has developed a strategy for bail and has been working on several initiatives, including a best-practices bail court.

A strategy for domestic violence is in development and is currently in the consultation stage. With the assistance of external experts, LAO has rolled out a domestic violence awareness staff training program. Consultations are now underway to support the development of a Racialized Communities Strategy for LAO, and a strategy for prison law is also in the early stages of development.

In the area of family law, LAO has been working with the Motherisk Commission to provide assistance to financially eligible parents identified as having been affected by a flawed Motherisk hair analysis test result. It is not yet known how many cases there will be. LAO made a written submission to the Ministry of the Attorney General’s Family Legal Services Review on the use of non-lawyers to deliver services in family law. LAO also continues to explore options for funding new family law services that were introduced with three years of one-time funding from the province, now in its final year. In the area of criminal law, LAO is supporting the Ontario Court of Justice’s Criminal Modernization Project by funding second judicial pre-trials at 15 pilot sites. LAO has developed and introduced supports and tools for criminal duty counsel, including a duty counsel immigration advice hotline and a plea comprehension inquiry tool. LAO has also piloted the use of licensed paralegals to provide enhanced support as members of duty counsel teams at four criminal courthouses.

LAO has been taking a more strategic approach to the funding of test case work and this has been working well. The first strategy for test case work was developed by LAO in the area of refugee law with the assistance of the private bar, and the Canadian Association of Refugee Lawyers, which has also developed test case priorities for refugee law.

The province has a major initiative on transparency, which LAO is supporting. Agencies have been asked to identify their file series to the province. LAO believes that it will be beneficial to have access to more information in government. LAO has become more transparent, publishing its advisory committee minutes and its public business plan.

LAO is interested in increasing its use of technology to enhance client services. In September this year, LAO hosted the annual meeting of Canadian legal aid plans, and afterwards hosted a “Wired Justice” conference. This was an excellent event that featured experts from around the world participating by Skype. Interactive websites have been introduced in Holland and Illinois and, in Canada, the British Columbia Legal Services Society is leading the way with its “MyLawBC” interactive program. LAO is following the experience in British Columbia with interest, and is preparing a strategy in order to be ready when resources to implement a similar program in Ontario become available.

LAO’s slide deck provides a summary of environmental scanning trends. Looking ahead to plans for 2017-2018, LAO will be continuing to develop and implement its strategic objectives for the current year.

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

  • The immigration advice hotline for duty counsel is meeting an important need. Over the past five years, criminal inadmissibility has been lowered and has become more complicated.

  • LAO’s refugee law test case strategy is excellent. It was beneficial for LAO to work on its strategy with the Canadian Association of Refugee Lawyers, which has a well-developed approach to test case work. It may be more difficult for LAO to apply a strategic approach to test case work in other areas of law.

  • The increase in the number of certificates being issued by LAO is an indication that financial and legal eligibility expansion is addressing unmet need for legal representation.

4. Immigration and refugee services update and discussion

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

The implementation of quality standards has been completed. 325 lawyers have been approved for the panel. 83 of these have been approved with conditions, such as a mentoring requirement. There are three points in the year when applications to be on the panel are accepted. An improved panel management system is in place, and includes a more robust panel removal process.

LAO continues to develop its alternative fee arrangement program in refugee law, with six lawyers renewing for another two-year term and additional alternative fee arrangements being explored.

LAO has been improving its refugee law training for staff and private bar lawyers. Eleven online training modules have been developed and 15 in-person and webcast training sessions have been delivered. LAO now has 25 mentors working with 57 mentees.

LAO is under financial pressure due to the increase in demand for refugee law services, and is looking for opportunities to increase efficiency and effectiveness. The impact of LAO’s quality improvements is being monitored to determine whether they are leading to a reduction in costs for appeals, investigations and complaints. LAO is exploring opportunities for potential cost reduction in country research. It may also be possible to save money on interpretation and translation using a vendor-of-record bulk purchasing model.

Work is underway to identify new refugee test case funding priorities for 2016-2017 and beyond, recognizing the changes in the political landscape.

LAO continues to meet and communicate regularly with its stakeholders and key partners. Communications include regular website updates and communications through the Refugee Lawyers Association list serve. An e-bulletin has been created for the refugee panel. The “Refugee and immigration services Annual Report 2015/16” has been published on the LAO website.

There is progress in making improvements for immigration detainees. There has been publicity around this issue and LAO is engaged with its partners who are working on law reform initiatives related to migrant detention.

LAO is also working to improve its ability to capture the client voice through presentations to client serving agencies.

The new eligibility enhancements in refugee law are: improved access to certificates for Humanitarian and Compassionate applications; increased coverage for stay motions, from six to 15 hours; 10 hours available for deferral requests; up to 16 hours of coverage, plus hearing time, for certificates for a habeas corpus certificate.

LAO has simplified its Refugee Appeal Division and judicial review assessment policies and processes. A single staff review committee has been created for all Refugee Appeal Division matters province-wide, and there is now one refugee area committee that deals with all judicial review matters.

Certificate numbers for refugee services are 45 percent above forecast this year, and $10 million over budget. There is also an operational deficit within the refugee and immigration services program. $4.2 million in additional federal funding has been provided by the Department of Justice Canada, but a $6 million gap remains. There is an immediate pressure relating to the fourth quarter of this fiscal year, from January through March. LAO has been speaking with members of Parliament, and with the office of the Minister of Immigration, to see what might be done. LAO has asked the Immigration and Refugee Board if it can expedite more claims, since expedited claims are less expensive for LAO to fund than full hearings. LAO is also exploring potential program cost savings related to process servers, translation, country research and country specialization. Members were asked to provide LAO with their ideas for managing the refugee program within budget.

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

  • Ontario has Canada’s best legal aid program for ensuring lawyer competence in refugee law and should be congratulated. The Law Society of Upper Canada’s complaints process has not been able to address the issue of inadequacy and inconsistency of counsel in the refugee law area. Mentorship is a very important component of LAO’s program.

  • It may not be possible for lawyers outside of the Toronto area to generate enough work to support a monthly income through an alternative fee arrangement.

  • There may be an opportunity for LAO to save translation costs by working with the Immigration and Refugee Board on reducing the number of documents that must be translated. Not every document should have to be translated.

  • Using a bulk translation service could result in economies of scale that would reduce costs, particularly from high volume countries. Translators tend to develop templates for certain forms and standard identification documents, and these templates can be reused.

  • The new docketing requirement for country research provides LAO with more information, but adds to lawyers’ paperwork.

  • Relying on case outcomes as an indicator of quality of representation can be misleading, since a negative case outcome can be unavoidable due to country conditions or individual Board members. A positive case outcome does not equate to quality of representation, although quality can make a difference in many cases. Case outcome information should be treated as one factor, to be considered in combination with other factors. Consistent loss of claims from countries with high acceptance rates ought to trigger a conversation with the lawyer, but it is not an automatic indicator of quality issues. Looking at high volume billers was also suggested as a good place to start when looking for potential quality concerns.

  • Pressure from increased demand for refugee services will likely continue to grow. There were 15,000 claims last year and 19,000 claims are expected this year. There could be a dramatic increase in claims from Mexico when the visa is lifted in December 2016, since claims from Mexico formerly represented one third of all claims to Canada. A formula should be worked out with the federal government that is based on the flow of claims.

  • Since the largest proportion of LAO’s refugee funding is spent on initial representation at the Refugee Protection Division, LAO needs to think of ways to reduce costs for first-level claims.

  • There is a large backlog of legacy claims. It is not yet known how these claims will be processed.

5. Other business

None raised