Public proceeding of the Board

Immigration and refugee law advisory committee: Meeting minutes for September 8, 2014

1. Participants

Members

John McCamus, Raoul Boulakia, Maureen Silcoff, Gerri MacDonald, Michael Bossin, James McNee

Regrets

Debbie Douglas, Andrea Sesum, Claudio Ruiz, Deyanira Benavides, Melissa Loizou

Legal Aid Ontario

Jawad Kassab, Rod Strain, Maureen Hastings, Heather Morgan

2. Welcome and Introductions

The Chair opened the meeting.

3. Minutes, March 25, 2014

The minutes of the March 25, 2014 meeting were approved as amended.

4. LAO Business Planning Slide Deck

The Chair presented an overview of the business planning slide deck, highlighting the general planning outlook for LAO and relevant environmental factors to be considered. The committee was advised of LAOs strategic goals for 2015/16 and the planned initiatives supporting those goals. A review was also provided of the major areas of focus by area of law.

The 2014 provincial budget includes a plan to increase financial eligibility for legal aid services to the 2011 Low Income Measure (LIM) that is used by Statistics Canada. This plan is expected to double the number of people eligible for legal aid. Following the governments announcement, LAO will explore the potential to broaden coverage to respond to changing legal needs at higher income levels. A possible example would be coverage for secondary consequences, such as employment or immigration consequences, in criminal law.

LAO is continuing to work on its key strategies for Aboriginal Justice, Mental Health, and French Language Services. A new Domestic Violence strategy is in development. LAO is also continuing its work on developing a proposal for an expanded focus on test case work at LAO.

Another important area of focus will be working with and assisting service providers, for example by training and mentoring, and by continuing to address billing irritants. New family law services continue to be rolled out, and there have been exciting developments in clinic transformation, including the release of a new Vision Report by the GTA (General Toronto Area) legal clinics. Clinic transformation is not anticipated to affect refugee law services provided through clinics.

5. Refugee Services Transformation Update

The RLO Director and LAO Executive Lead, Refugee Services Transformation, provided an update on refugee services transformation initiatives. The committee was advised of recent and ongoing work related to improvements to certificate coverage, the development of a Refugee Law Test Case Strategy, the process to implement the new refugee panel standards, the use of Alternative Fee Arrangements (AFAs) and other initiatives.

Certificate coverage issues related to deferrals and stays are being considered. The financial implications of any coverage adjustment must be taken into account, and LAO is working on a financial forecast. Although the trend of fewer numbers of refugee certificates being issued continued to hold through the end of fiscal year 2013/14 (March 31, 2014), there was an uptick in Refugee Protection Division (RPD) certificates over the summer. LAO must also consider the cost of the new Refugee Appeal Division (RAD).

The committee was interested in how LAOs new panel standards will affect processes around merit assessments and approvals for JR and RAD cases. The elimination of judicial review (JR) opinion letter certificates has had a negative impact, and the new panel standards should be able to address previous concerns about quality. Although opinion letters will not be re-established, when a new appellate panel is in place there will be new methods available, in addition to staff merit assessments and retroactive authorizations, for authorizing JR and RAD cases. LAO will develop options and come back to the committee for discussion.

The committee was interested in the new test case strategy for refugee law work. The strategy will be posted on LAOs website. There were questions about the intersection between the approach of the Refugee Law Office (RLO) to this work and the way that LAOs Group Applications and Test Case Committee (GATCC) evaluates test case applications. GATCC and the RLO each have their own budget, but GATCC will consider the refugee law test case strategy when looking at an application that raised refugee law issues. This approach will open up great opportunities for partnerships.

The committee discussed AFAs, which are in the pilot stage. LAO would like to increase the number of lawyers participating in the AFA pilot to, for example, between 10-15 in the GTA. AFAs involve regularized payments in advance to lawyers, based on a lawyers past history with LAO and a commitment by the lawyer to maintain a certain number of cases. There are allowances in the contract for changes in the number of cases taken on. The benefits of AFAs to lawyers include elimination of the need to request disbursements and an overall reduction in administrative work. LAO was asked if a generic (anonymized) version of the contract could be provided and posted on the RLA list-serve to allow lawyers to see an example of the contract itself. Members also felt that it would be helpful to be able to get a sense of the perceptions of lawyers who had entered into an AFA relationship. The comment was made that AFAs would probably be more attractive to newer lawyers because of the guaranteed income stream.

It was confirmed that many newer lawyers want a mentoring relationship and some are badly in need of mentoring. Some need assistance in correctly identifying the legal issues that arise in their cases, while others have good basic skills but need to improve their work habits. There are senior lawyers who want to be mentors and teach new lawyers the basics, but the existing program is not ideal for them. The committee encouraged adoption of a more tailored approach to LAOs Second Chair mentoring program. Refugee lawyer participation in the program has not been strong. It was suggested that this is because the application is directed to mentoring for a particular case (more appropriate to case-managed criminal law work than to refugee law work) as opposed to an ongoing mentoring relationship which is what younger refugee lawyers really want. What might work better is approval of a mentor and pre-approval for a certain number of certificates or a certain number of hours. A buddy program that would team newer lawyers with senior counsel who would review their identification of legal issues and their arguments on case files could also be effective if supported by LAO, since many refugee lawyers are sole practitioners. The mentoring program should also provide a better and more explicit understanding of what the expectations are, on both sides (such as, for example, the expectations in terms of contacting the mentor).

LAOs clinic refugee service agreement pilots were discussed. No matter who is doing the work, the quality of the work must be the main focus in evaluating the pilots. It was noted that there have been concerns about some of the clinic cases. There will be a formal evaluation of the clinic pilots in the fall, which will include a substantive file review and discussions with peers.

6. Committee Discussion and Advice

Increasing financial eligibility will not have an impact on refugee claimants who arrive at the border and have their hearing in 60 days. However claimants whose cases have been delayed, such as claimants with legacy cases, may find work in the time that it takes their case to be heard. Usually these claimants find marginal jobs, with incomes under $20,000. The financial eligibility cut-offs also have a more restrictive impact on people whose cases are more complex and expensive, for example ministerial intervention cases; people with low-paid jobs cannot fund these cases themselves and could benefit from expanded eligibility or more discretion around payment agreements.

LAO was urged to consider legal coverage as well as financial eligibility in immigration and refugee law matters; there are some types of cases, such as identity theft or sponsorship cases, that tend to come up for people who are not freshly arrived in Canada and who are more likely to have found employment and would not qualify under the existing financial cut-offs.

Members supported LAOs commitment to work with the Refugee Lawyers Association (RLA) on the empanelment process after the new refugee panel standards are approved by LAOs Board. It was emphasized that developing a good, fair process will be critical to the success of the new standards.

LAO should be aware that if the RLO becomes heavily invested in test case work it may be unable to fill service gaps. It was suggested that LAO keep statistics on any cases that the RLO has to turn away. Also, because test cases tend to be creative, unique and hard to anticipate, any strategy for test case work must make it explicit that the strategy is not binding so that good cases will not be turned away because they are not on the list (alternatively, a none of the above category is needed on the list).

LAO should adopt a more tailored approach to mentoring and the Second Chair Program to improve refugee bar participation in the program. The program also needs to provide a better and more explicit understanding of what the expectations are, on both sides. Two suggestions for making the program more attractive to refugee lawyers would be:

  • Pre-approval for a certain number of certificates, or for a block of 50 hours, would leave it up to the mentor and mentee to decide at their discretion which cases are appropriate for mentoring.
  • Teaming newer lawyers with senior counsel who would review their identification of legal issues and their arguments on case files.

The need for LAO to evaluate the clinic pilots in relation to quality and workload issues, and the need for a client-based approach to the evaluation, was emphasized.

7. Other Business

Members discussed concerns with the new wording on the lawyer declaration, which is used when a lawyer acknowledges a certificate. The new wording is broad, and could be interpreted as expecting a lawyer to investigate whether a client had ever previously retained a different lawyer. It was confirmed that this wording is being used across the board by LAO, and was introduced to respond to concerns about loopholes that were being used in some cases, more typically in other areas of law. There have been other questions about the new wording, and LAO will communicate to clarify its meaning. LAO will also take another look at the new wording and how it applies in refugee law.

8. Action Items

  1. LAO will look into whether it can make a generic (template) AFA contract accessible to the RLA.
  2. LAO will consider the committees suggestions for making the Second Chair Program more flexible and attractive to refugee law practitioners.
  3. LAO will prepare and circulate a paper that explores options for approaching judicial review and RAD matters, following implementation of the new refugee panel standards and the establishment of the new appellate panel.
  4. LAO will look at the new wording being used in the lawyer declaration for acknowledgement of a certificate, and will consider how it applies in refugee law.