Public proceeding of the Board
Immigration and refugee law advisory committee: Meeting minutes for May 28, 2013
John McCamus, Michael Bossin, Raoul Boulakia, Gerri MacDonald, Sean Rehaag, Deyanira Benavides, Debbie Douglas, Melissa Loizou, Maureen Silcoff, Claudio Ruiz, James McNee
Legal Aid Ontario
Aneurin Thomas, Jawad Kassab, Andrew Brouwer, Heather Morgan
2. Welcome and Introductions
- The Chair opened the meeting.
- The Chair noted that there are eight advisory committees. Each committee meets twice yearly in order to provide advice directly to the Board of Directors. Meeting minutes are provided to the Board with a cover report summarizing themes and specific advice. The fall and spring advisory committee meetings are aligned with LAO’s business planning process.
3. Minutes, November 26, 2012
The minutes of the November 26, 2012 meeting were approved.
4. Refugee Law Services Transformation - Update
- LAO’s Director of Corporate Services Planning and Strategic Initiatives introduced the slide deck on refugee law services transformation that had been circulated to committee members. LAO is basing its planning on the need to respond to the new legislation and current environmental factors, and also on the need to build a system that is sustainable and able to withstand fluctuations in service demand over time.
- Although certificate numbers have dropped, the percentage of applications currently being approved by LAO (94% since December 2012) is close to historic norms. While fewer certificates are being issued, this is because there have been fewer applications. Claims are down by 50 per cent.
- Due to the instability of environmental factors at present, LAO is not proceeding with full fledged permanent changes to its service delivery system. Instead, a phased-in approach, based on the establishment of pilot projects, is being employed. The pilots will be subject to ongoing assessment. LAO has created a Refugee Services Operations Review Committee made up of multiple stakeholders, including lawyers, paralegals and agencies, to provide feedback. Two new members, lawyers recommended by the Refugee Lawyers Association, are going to be joining the Review committee, as will a representative from the Canadian Association of Refugee Lawyers (CARL).
- The merit screening process was discussed by members. It was emphasized that the Designated Country of Origin (DCO) list is not being used by LAO to merit screen. The committee was interested in learning whether LAO had developed manuals or other materials for use by persons conducting merit screening. LAO is currently developing these materials, with the assistance of internal experts. Members noted that it is important that decision-makers be kept up to date on developments in the law and on changing country conditions. Members also asked to see the script (list of questions) that merit screening is based on; LAO can provide members with the script. A member asked whether there is a commitment to a specific length of time for decision-making on merit screening. LAO does have a service level commitment as to turnaround, and will get back to the committee with that information. Merit screening is carried out by experienced lawyers and paralegals. Secondary screening is done by lawyers. LAO will be reviewing the merit screening process and will post the results of that review on its website. The review will likely be completed in the fall.
- A member asked whether LAO’s review would include output (results) data as well as input data (costs, number of certificates). LAO believes that outcome data is crucial, and will be including this in its review. It will be important to look at the outcomes for those who do not receive certificates as well as the outcomes for those who do. The issue is the impact of having counsel.
- Over the next few months LAO will be focusing on new and improved panel standards. Members emphasized that quality standards are very important. LAO was encouraged to engage with the private bar when working to improve standards. The current standards are not stringent enough; quality has to be mandatory. The point was made that LAO should be spending its money on lawyers who do quality work, and not on those who do not. It was suggested that LAO consider the available data on lawyer outputs. Although this data should be used with caution, since there can be different reasons for negative outcomes, LAO should at least be aware of what the output data suggests. Where lawyers have different outcomes in cases involving the same mix of board members and claimants from the same countries, there is a good chance that responsibility for the bad outcomes lies with the lawyer. The LAO Director, Policy, indicated that, in the criminal law area for example, LAO has been taking a multifaceted approach to quality; such an approach includes peer references and other information gathered by LAO as well as output data. He added that LAO wants to work with the bar, and needs the bar’s help, to develop more sophisticated standards.
- There was a question about how LAO is dealing with the closure of the Immigration and Refugee Board office in Ottawa, since Quebec’s funding for refugee law services is different from Ontario’s. LAO is currently funding travel for Ottawa counsel to attend hearings in Montreal. Although LAO does have a reciprocity agreement with Quebec’s legal aid plan, LAO does not take the position that it applies to these cases. LAO is considering other solutions.
- There was a question about the validity of one of the assumptions behind LAO’s planning. It was suggested that the experience in the 1990’s, when refugee law service costs increased, is not comparable to the present circumstances because the increase in the 1990’s was due to visa restrictions and not legislative change. A member asked why LAO needs to move ahead with changes in the refugee law area when costs in this area are already dropping. The LAO Director, Policy, said that LAO has to take the long view, noting that historically there has been more variability in refugee law service demand than in other areas of legal aid service delivery, partly due to the factor of changing country conditions. LAO’s planning must focus on what a good system looks like, in times of high as well as lower demand. Much of LAO’s planning in this area, such as the quality standards initiative, would be taking place even if there had been no legislative changes.
- There was discussion about why some claimants may not be approaching LAO for assistance. Some claimants may believe that LAO no longer offers refugee law coverage; It was reported that OCASI has been asked, by a settlement agency, whether it is true that LAO is no longer doing refugee law work. There is a real need for communications to the refugee serving sector about LAO’s transformation and what it means, including information on what LAO is and is not doing, and who is eligible for services. The point was made that the refugee law resources section on LAO’s website needs to include the information that these resources are one of the services that LAO provides in this area (and not the only service).
- Another reason that members put forward for the drop in applications is that many lawyers are not willing to make federal court applications for judicial review cases “on speculation” and now seek an initial retainer from the client before making an application. Clients who are unable to pay a retainer are falling through the cracks. Lawyer members of the committee agreed that LAO’s decision to stop funding judicial review opinion letters is a huge issue, calling it the most detrimental step that LAO has taken in the refugee law area. LAO is evaluating this decision and is monitoring the statistics.
- The point was made that the bar no longer has, and definitely needs, even as an interim measure, a connection with LAO that will enable a lawyer to find out whether a claimant has even approached LAO, and if the claimant is financially eligible. Lawyers no longer know whether or not the person has applied to LAO and what steps have or have not been taken. This information is important to know, and used to be provided by LAO through an automatic email.
- The expanded use of paralegals was discussed. A member expressed the view that it is a good idea for LAO to experiment, adding that LAO has to know that this is a controversial area. The existing evidence suggests that LAO should move slowly and monitor the results carefully. Any decision to expand the use of paralegals needs to be evidence-based. In refugee law, the decisions that are made can mean life or death, and we do not want to get it wrong. Another member stressed that there is a key distinction to be made between using supervised (in-house) and unsupervised paralegals. Paralegals cannot just be given a certificate and thrown into a hearing. No one can do a hearing properly without understanding the case law. It was noted that the use of paralegals in a supervised setting (within the Refugee Law Office) has worked well. Expedited hearings (which no longer exist) and detention reviews were good choices for paralegals because neither was a final determination, so that risk was mitigated. It was emphasized that the use of unsupervised paralegals raises a red flag. Some members raised concerns that paralegals should not act at RAD or RPD hearings. Mentoring could be an option, and is good in theory, but in practice people tend not to contact their mentors. One member advised LAO to tighten up its panel standards for lawyers first, and fix those problems, before moving forward with paralegals.
- LAO was also cautioned that, although the private bar is committed and dedicated, paralegals may behave differently and depart for “greener pastures” after gaining experience with LAO. Former consultants who become paralegals tend to charge a lot of money to the people in their communities and they would expect to earn good money working for LAO. If LAO intends to pay paralegals less than it pays lawyers, recruitment and retention of paralegals may not be easy. One member reported hearing of unlicensed paralegals charging $1,500 to file a notice in Federal Court. This culture is different (from the culture of refugee lawyers), and LAO needs to be aware of that fact.
- Members also cautioned LAO against taking a kneejerk “the Law Society licenses them, so let’s use them” approach to expanding paralegal services. The Law Society is under a lot of pressure to make paralegals eligible to provide more of the services that lawyers provide. One member indicated having heard that the Law Society’s paralegal licensing requirements, in respect of English or French language skills, are more lax than those of another designated licensing body for paralegals in the province. Members voiced the opinion that the Law Society may not be overly concerned about whether refugees may be receiving incompetent or even fraudulent services. The reason why LAO was asked to create panel standards in the refugee law area in the first place was because the Law Society’s requirements were not felt by refugee lawyers to be stringent enough to ensure quality service for these vulnerable clients. One member cautioned that LAO should not allow the Law Society to “set the pace” for the use of paralegals in providing refugee law services because, although the Law Society talks about vulnerable people, in the member’s opinion they care more about trust funds than they care about refugees.
- There were some questions about points listed on slide 17 of the Refugee Law Services Transformation slide deck. Members were interested in learning more about what LAO means by creating a “redefined role for refugee staff offices”. Also, some members said that they would be interested in learning more about potential alternative fee arrangements for lawyers providing refugee law services. In 2009, during one of the Attorney General`s advisory committee meetings to discuss the allocation of new funding from the province, LAO’s President and CEO had suggested contracts as a possibility. It would be helpful to know what LAO is thinking about when it talks about alternative arrangements. Similarly, it would be helpful to hear LAO`s thinking on block fees. If these ideas could be fleshed out by LAO, lawyers may be interested. The Chair advised that the future role of staff offices and alternative fee arrangements were topics of consideration at LAO, but that no specific proposals have yet come forward to the Board. LAO will come back to the committee when something more specific has been developed.
- The idea of streaming French-speaking clients to the Centre Francophone clinic was raised by a member, who asked whether these clients would be offered a choice before being streamed. LAO will follow up and respond. The point was made by another member that the Francophone private bar is very small, and if they can no longer get certificate work LAO risks losing some very experienced lawyers. It is important to note that many of the refugees that are coming to Canada now are Francophone.
- Members asked questions about materials that they had seen posted on LAO’s website. One member asked about a reference on the website to the Refugee Law Office becoming a “Centre of Excellence”. Another member was concerned about the fact that information on the website suggests that LAO plans to use the DCO list in merit screening, suggesting that most applicants from DCO countries would be denied coverage, even though the materials circulated to the committee for this meeting state the opposite, that the DCO list will not be used. The Chair said that it would be difficult to provide precise answers about materials that are on the website without seeing them. However, the reduction in costs for refugee services means that LAO is now looking at making more modest changes than were formerly under consideration. Members advised that if this is the case, LAO needs to communicate its change in direction more clearly. There is a perception out there that the federal government is telling refugees “Don’t come to Canada” and that Ontario is getting ready to do the same thing. If something posted on the website is no longer true, it should be removed. LAO was urged to improve its communications.
- Members suggested that, since the drop in refugee costs has provided LAO with some more time for thinking about its course of action, the best place to start would be strengthening the panel standards. This is something that everyone agrees on, and it should be the starting point. Members advised that access to service, quality service and effective use of resources should be the focus. While LAO has done a good job of showing that it is making effective use of space and reducing its administrative costs, it has been less effective in showing that it is delivering quality service and access to justice. LAO should be asking, not just about cost per assist and number of square feet, but also about the Hungarian claimants whose lawyers were funded by LAO and whose cases were abandoned. The Board should ask, how did this happen and how can we prevent it from happening again? Refugee claimants are vulnerable, and they have already been penalized once, by the federal legislation. They should not be double-penalized by receiving poor or inadequate service. LAO’s goal should be to provide quality service to those who are at the bottom of the ladder and need assistance the most.
- The “pyramid” graphic on page 20 of the Refugee Law Services Transformation slide deck was described as troubling by a member who felt that it should not be applicable to refugee services. The member did not disagree that LAO’s newer services, including telephone summary legal advice and the Family Law Information Program on the website, may be helpful to clients and are filling gaps in other service areas, but it was stressed that in the refugee law area LAO should focus on doing what it does best – providing representation. As well, it was pointed out that some of the refugee law information posted on the LAO website is duplicative, since the IRB also provides information kits to self-represented claimants. It was suggested that LAO should not spend its money producing materials that other agencies are already offering.
5. Action Items
- LAO will circulate the “script” (list of questions) used by staff in merit screening.
- LAO will provide the committee with information on LAO’s service level commitment for turnaround on merit screening decisions.
- There is a real need for communications to the refugee serving sector on LAO’s transformation and what it means, including information on what LAO is and is not doing, and who is eligible for services.
- The refugee law resources section on LAO’s website needs to include the information that this is one of the services that LAO provides in this area (and is not the only service).
- LAO should consider, even as an interim measure, making information available to counsel as to whether a claimant approaching counsel has applied to LAO and if they are financially eligible. This information used to be provided by LAO through an automatic email.
- LAO will come back to the committee when more specific information can be provided about potential alternative fee arrangements and the possibility of introducing block fees for refugee law services.
- LAO will follow up with more information on the streaming of French-speaking clients to the Centre Francophone, indicating whether clients will be offered a choice of whether to use the clinic or a private bar lawyer.
- LAO will follow up on the committee’s advice to improve its communications about proposed changes and ensure that its website is up to date in respect of LAO’s refugee law services. Some things that are posted on the website (for example, LAO’s contemplated use of the DCO list in merit screening, which is set out in the first consultation paper) are now out of date and contradict more recent information that has been provided to the advisory committee.
- LAO should look at what happened to the Hungarian claimants whose lawyers were funded by LAO and whose cases were abandoned, and think about how it can prevent similar situations from occurring in the future.
6. Other Business