Public proceeding of the Board

Immigration and refugee law advisory committee: Meeting minutes for November 29, 2010

1. Participants

Members

John McCamus, Rod McDowell, John Rokakis, Michael Bossin, Sean Rehaag, Gerri MacDonald, Raoul Boulakia, Rana Khan

Regrets

Barb Jackman, Geraldine Sadoway, Marcel Castonguay, James Yakimovich, Ezat Mossallanejad

Legal Aid Ontario

Rod Strain, Maureen Murphy, Angus Grant, Heather Morgan

Guest

James McNee

2. Welcome and Introductions

The Chair opened the meeting. The Chair said he was pleased to advise the committee that Michael Bossin had been chosen as the 2010 recipient of the Sidney B. Linden Award, making him the second award winner who was also a member of this committee.

3. Minutes, July 14, 2010

The minutes of the spring meeting were approved.

4. LAO Business Planning Overview

  • The Chair provided an overview of LAOs current financial position and major initiatives. The overall strategy has been to reduce unnecessary costs while increasing service and service quality.
  • The financial picture has continued to change, but at this point LAO is predicting a $15 million deficit for the current year. If the economy recovers and Law Foundation incomes improve, LAO will be in a better position. Regional restructuring and provincial office savings have produced an overall saving of nearly $20 million. This was a difficult experience, as 200 of 800 positions were eliminated. LAO is required to balance its books over a three-year cycle, and has a plan to do so. It is hoped that LAO will be in a balanced position by 2012-2013.
  • Improving and expanding the Client Service Centre has been a major focus this year. Other current initiatives include the block fee pilot in criminal law, and a pilot of a simplified financial eligibility test, which LAO hopes to implement in due course. LAOs existing financial test is based on an outdated welfare standard, and it is not transparent. The simplified test is based on income and will be easier for LAO to administer, while making the low standard more visible. The Board is interested in ultimately being able to increase the thresholds of the financial test.
  • Certificates are down this year, across all areas of law, but the reason why is not known. LAO is continuing to monitor the situation and is looking into why this may be occurring. In criminal law, increased diversions for minor offences and a greater number of guilty pleas may be significant factors, along with the decreasing crime rate. As well, the eligibility standard, which has not changed since it was lowered in the 1990s, continues to erode each year.
  • Members felt that the drop in the number of certificates was not due to a decrease in demand. It was suggested that clients may be falling through the gaps now that the in-person application process is less accessible.
  • It was also suggested that merit screening may explain why the number of immigration and refugee law certificates issued is not higher. A member had obtained statistics on LAOs refugee hearing coverage through a FIPPA request, and the data showed that that, while overall demand is rising, the final refusal rate, based on LAOs review of opinion letters, has increased. No correlation between refusals and country of origin was available; it was also noted that some opinion-only certificates are not refused but are simply never pursued as full certificates.
  • Members generally felt that, based on comments posted on the RLA list-serve, it did appear that more opinion letters are being rejected. Perhaps, it was suggested, there is a quota in place. The Chair said that he is unaware of any quota system or plan to reduce certificate numbers, and requested an explanation from staff for the drop in certificates, particularly in criminal and refugee law.
  • A member suggested that the problem with opinion letters may be related to a loss of expertise in reviewing them, now that there are fewer area directors. Local area directors knew the lay of the land in their area, and knew the local lawyers, so it was easy for them to know how to assess opinion letters that came to them. Staff who are reviewing opinion letters now may lack that kind of experience. The LAO Director, Policy, agreed that there is a need to explore whether there is a training issue that needs to be addressed. The comment was made that the whole opinion regime may be problematic; after all, it is based on an inherent conflict of interest. Another member commented that, under Bill C-11, the opinion regime may become impossible.
  • A member indicated that the letter template LAO uses, stating that LAO has made a determination of insufficient merit, may be discouraging clients who believe that the IRB will be bound to dismiss their claim on the same basis. The LAO Director, Policy, said that it might be possible to soften the wording in the letter, but the wording still needs to make the reason clear to the applicant. Lawyers may need to explain the situation more clearly to clients.
  • Payment of lawyers accounts requiring discretion was identified by a member as an issue that is causing concern. Approval of travel requests is another problem; the request often has to be re-sent.
  • A concern was raised with respect to inexperienced application-takers at the Client Service Centre making mistakes. Some applicants do not understand what they have to do and what has to be signed. If their papers are not in on time, the certificate is cancelled and then has to be reactivated. These problems were described as the domino effect of moving to a telephone-based system. Lawyers used to be able to give clients a letter to bring to the legal aid office, explaining the clients situation. Now there is no way for this information to be transmitted. It would be helpful if there were a dedicated email address that lawyers and shelters could use to provide LAO with information about the client and that could be accessed by LAO when the client calls in.
  • It was stated that the telephone-based application system also leaves people more vulnerable to agents and scoopers.
  • Another problem identified by a member is that, while the initial telephone conversation with an applicant may take place with the assistance of an interpreter, the follow-up letter is always sent in English. This happens even if the applicants language is French. It was suggested that the letter be translated into French, Spanish and some other common languages.
  • The Chair thanked members for their input. When problems are identified, it helps LAO to address them. There have been a number of recent changes and improvements to the Client Service Centre, including a call-back system and a priority queue for victims of domestic violence, and wait times have been reduced. LAO continues working to improve the system.

5. Environmental Scan

  • Members felt that Bill C-11 will increase LAOs costs, and that LAO will require more funding.
  • The IRB has provided the RLA with draft rules, and has asked the RLA to provide general comments about the draft rules by December 18.
  • Members heard that the Regulations will be drafted in April 2011 and finalized in October.
  • There was consensus that the initial interview will not, on its own, be an effective replacement for the PIF. Lawyers will need to attend the interview, and then will need to go back to the client to get more information. The IRB is also apparently now recognizing that the initial four hours will not be enough time to get all of the information that is required. There is now some talk of using a form at some point in the process (perhaps this will be a type of PIF).
  • Members have heard that the IRB will be reluctant to adjourn an interview to allow counsel to be present. There are also indications that participation by lawyers will not be welcomed. Lawyers may be provided with a CD or portable drive with a recording of the interview, but lawyers will be expected to pay for it, which is another cost pressure.
  • Finding interpreters at short notice will also be a pressure, particularly outside Toronto.
  • Given the limited role of counsel at the initial interview, members suggested that LAO will not likely be able to provide certificates to all claimants at the interview stage. However, members agreed that there must be a system in place to protect vulnerable claimants. It was felt that it should be a priority to provide everyone with some form of representation at the interview, and with support in preparing for the interview. The conversation about merit should be left for afterwards.
  • It was suggested that LAO think about a potential role for duty counsel, and possibly for clinics, in providing assistance at the interview stage (although clinic coverage may be subject to change at the direction of clinic boards, and if LAO is going to move to a staff-based model it will be important to have dedicated assistance in place). Some members felt that duty counsel assistance should be provided to all claimants. Others thought that a mixed model, including private lawyers, duty counsel and clinics, could be just as effective.
  • Because the RAD process is technically an appeal, there was a question about whether LAOs legislation will require area committee approval to issue a certificate.
  • Turnaround time for RAD appeals will be very short. Lawyer availability may be expected to be a real problem. Another issue is the turnaround time for medical reports: will doctors be prepared to turn reports around quickly for $300? Obtaining transcripts quickly will also pose a problem. It will have to be done at lawyers own expense. One member noted that currently it can take two weeks to obtain a recording, much less a transcript, from the IRB.
  • Members felt that the existing opinion letter regime will have to be abandoned under the new system. There was a suggestion for providing funding for initial attendance at the interview with ongoing funding being contingent on merit. Other members indicated that LAO needs to make a firm decision about funding early on, and issue a full certificate at the start of the 15-day period. If there is going to be merit screening, LAO will have to find a way to do it themselves, and not through a lawyers opinion.
  • It was suggested that the volume of applicants may surge in summer or fall 2011, if applicants are trying to make claims under the old system before it changes.
  • The number of inland claims (by persons entering illegally to avoid the Safe Third Country Agreement) appears to be increasing, and this will not change under the new system. This should be recognized as a cost pressure for LAO.
  • There may be fewer Tamil migrants making their way to Ontario from B.C. as initially thought, so the cost impact to LAO may be lower. The migrants have been detained in B.C. for some time, and the CAS has become involved with the children. B.C. has absorbed the cost of their PIFs. If Bill C-49, the bill on preventing human smugglers from abusing the immigration system, becomes law, virtually none will come to Ontario.
  • If Bill C-49 passes, there will be protracted detentions, Charter challenges and more costs to LAO. Some members felt that Bill C-49 would be defeated.

6. Other Business

None raised.