Legal Aid for Refugee Claimants in Canada
Legal Aid for Refugee Claimants in Canada
Legal Aid for Refugee Claimants in Canada A report drafted by the Refugee Forum under the direction of Peter Showler in conjunction with the University of Ottawa Refugee Assistance Project which operates on a grant provided by the Law Foundation of Ontario. The principal researcher and drafter was Alexandra Belluz. Provincial legal Aid tariffs were researched by Greg Erauw. Introduction This is an interim report documenting legal aid assistance available to refugee claimants in each province for legal representation at the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB), the Federal Court, humanitarian permanent residence applications and removal proceedings.
The information was compiled in June, 2012 prior to the passage of Bill C-31, the Protecting Canada’s Immigration System Act (PCISA). The report has been drafted with the expectation that a final report will document the major revisions to provincial legal aid programs that will inevitably be required to address the many challenges presented by the new act.1 The short timelines cited in the draft regulations, along with the introduction of the Refugee Appeal Division (RAD), will impose exceptional pressures on legal aid programs to provide effective legal services for refugee claimants, most notably in the following stages of the new refugee claim process: 1.
Drafting of the Basis of Claim form (BOC) within 15 days 2. Representation at the RPD hearing with 30 or 60 days 3. Completion of RAD appeal applications within 15 working days 4. Representation before the RAD when granted a live hearing 5. Drafting of leave for judicial review applications to the Federal Court 6. Drafting of stay of removal applications to the Federal Court for claimants denied an automatic stay of removal This list of primary legal service needs of refugee claimants2 is a daunting one and many provincial legal aid programs will fall far short of providing timely and effective legal representation for eligible claimants at every stage of the claim process.
The general challenges are two-fold: 1 Implementation of the new refugee claim system is expected by mid-December, 2012 or early January, 2013. It is expected that new provincial legal aid policies will be drafted prior to that date. 2 Refused refugee claimants may also require additional legal services including humanitarian applications for permanent residence and pre-removal risk assessments before the IRB. Most of those will be downstream services required if the refused claimant is not removed within the one year removal window provided for in the legislation.
1) provide effective legal representation at the crucial stages of the process; 2) approve claimant eligibility quickly enough to allow counsel sufficient time to effectively represent eligible claimants. For many provinces, if not all, there will be crucial gaps in legal representation. In many instances, other civil society organizations will be called on to provide partial forms of legal assistance, particularly in the early phases of the claim process. This report is therefore intended to inform several types of institution that may be concerned with the delivery of effective legal representation to refugee claimants, including the following: x Government departments to understand the extent of the shortfall of effective legal service delivery to refugee claimants; x Provincial legal aid programs to develop a comparative understanding of their sister programs; x Law societies and lawyers associations to comprehend the enormity of the problem imposed by the new legislation; x Non-government organizations to commence informed discussions on the legal service gaps with a view to developing optional programs to provide partial legal support.
Current Legal Aid Programs for Refugees In general, the availability of legal aid for refugees is inconsistent throughout Canada. The following provinces and territories provide no legal aid support for refugee claimants: Saskatchewan, Nova Scotia, Prince Edward Island, New Brunswick, Northwest Territories, Yukon and Nunavut. For the provinces that do provide support, each provincial section will provide the following information: 1. funding and program expenditures 2. refugee claim statistics, 3. eligibility evaluation (financial criteria, merits-of-the-case) 4. legal services offered 5. Legal Aid tariffs3 .
3 Tariff rates reported as of April, 2011
Refugee claims across Canada The distribution of refugee claims throughout Canada is extremely uneven with a few provinces bearing the bulk of the legal aid burden. The IRB tracks claims by regional offices (there are three) not by province. CIC statistics are not always consistent with IRB data and may not incorporate change of venue information. However the CIC chart below provides a general comparison of claim statistics for 2010 on a provincial basis. Total Entries of Refugee Claimants in Canada in 20104 Province Humanitarian Temporary Residents 2010 % of Total Newfoundland and Labrador 13 0.1 Prince Edward Island 8 0 Nova Scotia 51 0.2 New Brunswick 33 0.1 Quebec 4,699 20.3 Ontario 15,120 65.4 Manitoba 139 0.6 Saskatchewan 50 0.2 Alberta 1,022 4.4 British Columbia 1,901 8.2 Territories 0 0 British Columbia British Columbia provides legal aid for a limited number of refugee claimants.
Assistance may include only Personal Information Form (PIF) preparation or representation at the IRB hearing. Most services are provided by private lawyers under a certificate system. The number of claimants receiving legal aid is severely restricted based on financial and merits criteria; many claimants receive no assistance. Duty counsel is employed to assist claimants in detention. Funding (2011)5 : Income: Source Income 4 Citizenship and Immigration Canada, Immigration Overview: Temporary and Permanent Residents:2010 5 Legal Services Society Annual Service Plan, 2010/2011. Online: http://www.lss.bc.ca/assets/aboutUs/reports/annualReports/annualServicePlan Report_2010.pdf
Government of British Columbia $71,536,645 Law Foundation of British Columbia $3,735,309 Notary Foundation of British Columbia $469,618 Other $1,141,964 Total $76,883,536 Operating Expenses 2010/20116 : Immigration/Refugee: $2,570,648 (4.6% of total Legal Aid British Columbia operating expenses) Statistics: Demand for Legal Representation (Immigration/refugee)7 : 2010/2011 2009/2010 2008/2009 Applications 2,417 2,024 2,079 Referrals 1,476 1,237 1,464 % of total legal aid Applications 5.7% 5% 4.6% % of total legal aid Referrals 5.3% 4.6% 4.5% Eligibility: Financial8 : Family size Net monthly income for Legal Aid Net monthly income for Legal Advice 1 $1,470 $3,230 2 $2,050 $3,230 3 $2,640 $3,230 4 $3,230 $3,230 5 $3,810 $3,810 6 $4,400 $4,420 7+ $4,990 $5,000 6 Legal Services Society Annual Service Plan, 2010/2011.
Online: http://www.lss.bc.ca/assets/aboutUs/reports/annualReports/annualServicePlan Report_2010.pdf 7 Legal Services Society Annual Service Plan, 2010/2011. Online: http://www.lss.bc.ca/assets/aboutUs/reports/annualReports/annualServicePlan Report_2010.pdf 8 Legal Services Society, “Financial Eligibility” online: Legal Services Society < http://www.lss.bc.ca/legal_aid/doIQualifyRepresentation.php>
Legal Services Provided9 : Legal Aid British Columbia employs the Judicare (certificate) model. There are separate referrals for filling out the Personal Information Form (PIF) and the refugee hearing. PIF: x Only claimants from certain countries (if there is a high volume of claims but acceptance rates at the IRB are lower than 20%) are merit screened to receive funding to fill out the PIF. x 10 hours given to fill out PIF. Hearing: x All claims are merit screened, based on PIF. x Private lawyers are contracted to establish merit. x 10 hours are given to prepare, plus time in hearing. Based on funding, a certain number of Judicial Reviews, PRRA and H&C applications are funded by Legal Aid per year.
Duty counsel is offered for detainees, but refugee claim issues handled through referrals to lawyers.10 Tiered rates11 : Tier Years of Call Compensation Rate 1 Less than 4 years Published tariff rate 2 4 or more years and less than 10 years Tier 1 rate plus 5% 3 10 or more years Tier 1 rate plus 10% Legal Services Society pays an hourly rate for most of the services in these tariffs, for which the tiered rates are $83.90 (tier 1), $88.10 (tier 2), and $92.29 (tier 3).12 Services13 : 9 Personal Communication with Rochelle Appleby, Legal Services Society 10 Personal communication with Rochelle Appleby, Legal Services Society 11 Legal Services Society, “Tiered Rates” online: Legal Services Society .
12 Legal Services Society, “Tiered Rates” online: Legal Services Society ___ 13
Legal Services Society, “Immigration Tariff” in Guide to Legal Aid Tariffs (2009), online: Legal Services Society .
Service Hours General Preparation x Billable per hour for general preparation or other work not specifically covered by another tariff item (e.g., interviewing the client, taking instructions, attending interviews with the client and Canada Immigration, and completing the Personal Information Form) Up to 10 hours Preparation for hearing x Billable per hour for preparing for an RPD hearing Up to 10 hours Attendance at hearing x Billable per hour for attending an RPD hearing Actual time Preparation for a hearing during meal breaks x When a hearing lasts more than a half day, additional time is available for hearing preparation undertaken during meal breaks Up to 1.5 hours Attendance at an expedited review x Billable per hour for attending an expedited interview Actual time Stay applications in Federal Court x Billable per hour for preparing an application in Federal Court to stay a removal order Up to 15 hours Preparation for a Judicial Review in Federal Court or appeals to the Federal Court of Appeal x Billable when you prepare applications for judicial review to the Federal Court or BC Supreme Court, or appeals to the Federal Court of Appeal x Billable per hour for preparing an opinion letter and notice of application for leave.
x Billable per hour for preparing for leave to apply for judicial review x Billable per hour for preparing for a judicial review when leave is granted Up to 1 hour Up to 20 hours Up to 10 hours Attendance at a Judicial Review in the Federal Court or an appeal in the Federal Court of Actual time
Appeal x Billable per hour for attending the Federal Court or BC Supreme Court, or Federal Court of Appeal for the hearing of the appeal application Application to reopen/reinstate a proceeding before the IRB x Billable per hour for an application to reopen or reinstate a proceeding before the IRB Up to 5 hours Appeals and submissions to the Minister x Billable per hour when preparing submissions to the minister Up to 5 hours Opinion regarding the merits of an appeal x Billable per hour for preparing an opinion letter regarding the merit of appealing a court or tribunal decision Up to 2 hours Travel14 : $180 o Billable per half day of travel to or from a hearing or to interview a client in custody if the trip exceeds 160 km per round trip.
o Billable for each half day you remain at the hearing location. Visiting clients in custody15 : $90 o Billable once per referral when you visit a client in custody at a correctional or detention facility other than a holding facility at a courthouse. Medical Records16 Service Funding Medical records review by physician x For the first 15 minutes (authorization required for additional time) $85.60 Medical records photocopying x First 10 pages $1.40/page 14 Legal Services Society, “Immigration Tariff” in Guide to Legal Aid Tariffs (2009) at 8, online: Legal Services Society .
15 Legal Services Society, “Immigration Tariff” in Guide to Legal Aid Tariffs (2009) at 8, online: Legal Services Society ___ 16
Legal Services Society, “Immigration Tariff” in Guide to Legal Aid Tariffs (2009) at 5, online: Legal Services Society .
x Subsequent pages $0.30/page Form completion or simple letter reporting on patient’s condition $146 Medical legal letter $306 Medical legal report (prior authorization required) $917 Medical legal opinion (prior authorization required) $1,532 Professional Testimony Funding General practitioner $192/hour for up to 2 hours preparation plus court attendance $109/hour travel time Specialists $225/hour for up to 2 hours preparation plus court attendance $127/hour travel time Psychologists Up to $130/hour including preparation and court attendance Up to $69/hour travel time Psychiatrists Up to $225/hour including preparation and court attendance Up to $127/hour travel time Interpretation and Translation17 : o No prior authorization is required for uncertified interpretation accounts of up to $250.
Uncertified interpreters will be paid up to $25 per hour.
o No prior authorization is required for certified interpretation accounts of up to $350. Certified interpreters will be paid up to $35 per hour. o Translators will be paid up to $0.19 per English word of translation (no flat rates). LSS will authorize translation costs of up to $361 (1,900 words) for each immigration hearing referral issued. Alberta Alberta provides Legal Aid support for some refugee claimants for most levels of the refugee claim process including filling out the PIF, representation at the IRB hearing, appeals processes as well as removal processes. Services are provided by staff counsel.
Services are significantly restricted by financial criteria, as full Legal Services Provided is withheld for 6 17 Legal Services Society, “Disbursements for All Tariffs” in Guide to Legal Aid Tariffs (2009) at 15, online: Legal Services Society .
months to ensure financial eligibility. Emergency duty counsel services are available for claimants in detention. Funding (2011): Source Income Province of Alberta $58,810,000 Alberta Law Foundation $1,138,000 Recoveries from Clients $4,798,000 Interest & Other $395,000 Total $65,141,000 2010/2011: 1,180 immigration and refugee matters handled by Legal Aid Alberta, representing approximately 4% of all matters handled by Legal Aid Alberta18 . Eligibility: Financial: Family Size Income for Legal Aid* Income for Legal Advice** 1 Under $1,348 $1,348-$1,750 2 Under $1,668 $1,668-$2,165 3 Under $2,374 $2,374-$3,058 4 Under $2,566 $2,566-$3,340 5 Under $2,759 $2,759-$3,585 6+ Under $2,951 $2,951-$3,835 *Services include: x Information x Referrals x Legal advice x Brief services x Family settlement services x Expanded duty counsel x Full representation **Services include: x Legal advice from a staff lawyer x Information 18 Legal Aid Alberta, “Immigration and Refugee Services” in Legal Aid Alberta 2011 Annual Report (2011) at 20, online: http://www.legalaid.ab.ca/media/Documents/AR.2011-%20FINAL%20VERSION%20w%20 Cover.pdf
x Referrals x Brief services Presently, full Legal Services Provided is not provided by Legal Aid Alberta until six months have passed to ensure that the client is still financially eligible for services; however exceptions are made for some vulnerable claimants who are unlikely to ever exceed the financial means test and unaccompanied minors with no means of support19 . Merit: Merit is determined by staff counsel (Mr. Richard Bennett in Calgary and Ms. Ruth Williams in Edmonton). The main consideration for merit is whether or not there is a reasonable likelihood for success for the claimant20 .
Legal Services Provided21 : Legal Aid Alberta provides four levels of immigration and refugee services: x Information and referral without a means test x Advice and personal information preparation for all financially eligible clients x Limited scope assistance, brief services, to all financially eligible clients x Hearing representation by roster or staff counsel for financially eligible clients for the following matters: o Refugee claims o Admissibility hearings o Detention review hearings o Removal appeals to the Immigration Appeal Division o Ministerial appeals o Judicial review for refugee claims o Translation/interpretation services Legal Services Provided Rates: Rates for Legal Aid Lawyer22 : $84/hr ($74/hr for Students-at-law) o Maximum number of hours allowable will be indicated on Certificate.
Counsel may bill actual time for all steps included in Base Civil Legal Services Provided and for preparation and appearances.
19 Letter, Richard Bennett, Staff Counsel, Legal Aid Alberta 20 Letter, Richard Bennett, Staff Counsel, Legal Aid Alberta 21 Legal Aid Alberta, “Immigration and Refugee Services” in Legal Aid Alberta 2011 Annual Report (2011) at 20, online: http://www.legalaid.ab.ca/media/Documents/AR.2011-%20FINAL%20VERSION%20w%20 Cover.pdf 22 Legal Aid Alberta, “Tariff 2009” (2009) at 21, online: Legal Aid Alberta .
Base Civil Legal Services Provided23 : $84/hr ($74/hr for Students-at-law) – Maximum 30 hours o Counsel may bill for steps taken pursuant to a Certificate that are not billable under any other Tariff item and were necessary to complete the matters covered by the Certificate.
o Counsel must bill actual time; billing minimums are not permissible. Although Counsel is not required to produce time records for Base Civil Legal Services Provided when submitting accounts, LAA may request time records as part of our audit process, or when considering requests for additional hours. Thus, it is important that Counsel keep time records for all steps billed under Base Civil Legal Services Provided.
o The following may be billed under Base Civil Legal Services Provided: Interviews and phone calls with client Reviewing Documents Preparation of all documents and pleadings related to an action Negotiations and correspondence Preparation regarding witnesses, including experts and experts’ reports Preparation for trial Legal research Concluding matters Appearance before a Dispute Resolution Officer Appearances to adjourn a matter Waiting time in Court Time in Court prior to 9 a.m. or after 5 p.m. Preparation for and attendance at Pre-trial conferences or case management Preparation of written argument or submission for Court Services provided to Legal Aid Alberta – i.e.
securing mortgage documents o Counsel may not bill for the following, as it is anticipated that these steps are adequately compensated by the file opening and closing fees: Preparing memos to place on a file Telephone conversations, correspondence or other steps taken to schedule appointments with client Providing office staff with instructions Sending carbon copy letters to client or anyone else Communication with Legal Aid, via email, correspondence or telephone Preparing accounts o Counsel is asked to use the following as guidelines for billing for the preparation of documents.
Counsel may deviate from these guidelines but may be asked to provide an explanation.
Service Hours Basic correspondence (including email) 0.10 or 0.20 hours Review of correspondence received (including email) 0.10 hours Notice to disclose/notice of motion 0.30 hours Notice of motion for a regular chambers 0.30 to 0.50 hours 23 Legal Aid Alberta, “Tariff 2009” (2009) at 19-20, online: Legal Aid Alberta .
application Order 0.50-1 hours Service fees24 : Service Funding File opening fee $100 File closing fee $50 Attendance at trial (1st half day inclusive) $215/half day Preparation of interlocutory/leave application in the Supreme Court of Canada x Counsel may bill for interview time with client, all correspondence, drafting, filing and service of all documents including factum and briefing of law $1240 All appearances in the Supreme Court of Canada $1240/day Medical Report25 : o Maximum allowed is $250; prior approval must be sought for expense in excess of $250 Expert Reports26 : o If Counsel is of the opinion that a report from an expert is necessary to a client’s matter, Counsel may request approval for the cost of same, indicating: The name and area of expertise of the expert The nature of the analysis to be undertaken by the expert An explanation as to why a report from the expert will be beneficial to the client’s matter A detailed breakdown of the cost of obtaining the expert’s report, including the hourly rate of the expert, the number of hours the expert requires, and the steps to be taken by the expert Expert Witness Fees27 : 24 Legal Aid Alberta, “Tariff 2009” (2009) at 17, online: Legal Aid Alberta .
25 Legal Aid Alberta, “Tariff 2009” (2009) at 30, online: Legal Aid Alberta ___ 26
Legal Aid Alberta, “Tariff 2009” (2009) at 33, online: Legal Aid Alberta .
o If Counsel is of the opinion that evidence from an expert is necessary at a Court proceeding, Counsel may request approval for the cost of same, indicating: The name and area of expertise of the expert The nature of the evidence to be provided by the expert An explanation as to why the evidence of the expert will be beneficial to the client’s matter A detailed breakdown of the cost of the expert providing evidence, including the hourly rate of the expert, the number of hours for which the expert is expected to be required, and any other associated expenses, including travel costs and preparation time for the expert Emergency Services In addition to duty counsel at the courthouse, Legal Aid Alberta also provides duty counsel services specifically for detained persons through the Brydges program.
This service ensures access to immediate legal advice by telephone for all detained persons in Alberta regardless of their financial situation28 .
Manitoba Manitoba provides limited Legal Aid assistance for refugee claimants including representation at the IRB hearing and appeals processes. PIF completion is not covered by Legal Aid, as it is generally used as a tool in determining merit. Services are exclusively provided by private bar lawyers on a certificate program. Immigration and refugee matters are low priority as relatively few are received by Legal Aid Manitoba (LAM). Funding29 : Source Income Province of Manitoba $24,666,304 Manitoba Law Foundation $766,350 Government of Canada $132,130 Contributions from Clients $1,145,601 Other $834,241 Total $27,544,626 Payments fluctuate annually based on the volume of work completed by counsel, but less than 2% goes to immigration and refugee services (in 2010/2011, $120,000)30 .
27 Legal Aid Alberta, “Tariff 2009” (2009) at 33, online: Legal Aid Alberta ___ 28
Legal Aid Alberta, “Emergency Services: Detainees” online: 29 Legal Aid Manitoba, “Financial Report”, in Legal Aid Manitoba Annual Report, 2010/2011 at 11. Online: http://www.legalaid.mb.ca/pdf/2011_annual_report.pdf
In LAM’s Annual Report for 2010/2011, Immigration and refugee matters are included under “other civil” matters, of which 137 cases were handled (approximately 0.5% of all cases handled by Legal Aid Manitoba). 114 of these cases were immigration and refugee related31 .
Eligibility32 : Financial: Family Size Free Legal Aid Income Partial pay back Income Full pay back Income 1 $14,000 $16,000 $23,000 2 $18,000 $20,000 $27,000 3 $23,000 $25,000 $31,000 4 $27,000 $29,000 $34,000 5 $31,000 $33,000 $37,000 6 $34,000 $36,000 $40,000 6+ $37,000 $39,000 $43,000 Merit33 : LAM requests a background narrative to assess merits of an applicant's request for legal aid Legal Services Provided.
Applications for immigration matters have merit where: a finding of Refugee Status is sought; a deportation or removal order is opposed; a detention review or bail hearing is to be contested; or a person will continue to be resident in Manitoba pending an admissibility hearing. Screening is conducted by LAM Intake Department (non-lawyers). PIF is typically included as background documentation with an applicant’s legal aid application34 . Legal Services Provided: Private bar lawyers exclusively provide legal representation to eligible applicants for immigration and refugee matters.
Fees provided in this Part for all-inclusive items do not apply if the services furnished are for three hours or less.
In those circumstances, the solicitor shall claim for time expended at a rate of $80 per hour35 ___ 30
Personal communication with Michael Swait, Legal Aid Manitoba 31 Personal communication with Michael Swait, Legal Aid Manitoba 32 Legal Aid Manitoba “Who Qualifies Financially” online: http://www.legalaid.mb.ca/ 33 Personal communication with Michael Swait, Legal Aid Manitoba 34 Personal communication with Michael Swait, Legal Aid Manitoba 35 Legal Aid Regulation, Man. Reg. 225/91, Part 4.1
Service Funding Immigration inquiry (including all preparation and appearances) $530 Detention review (including all preparation and appearances) x Initial review x Subsequent reviews (each) $410 $150 Preparation and attendance at IRB, including first ½ day of hearing x Each additional ½ day of hearing $80/hour to maximum of $1050 $370 Preparation and attendance at appeal, including first ½ day of hearing x Each additional ½ day of hearing $80/hour to maximum of $1050 $370 Humanitarian and Compassionate landing (including post determination refugee claimant) $80/hour to maximum of $750 Federal Court, including all preparation and appearances x Application for leave x Hearing after leave x Application for stay x Consent motion x Contested motion $830 $1050 $830 $270 $460 Additional Disbursements36 : Every solicitor acting under a certificate shall be paid the following disbursements actually and reasonably incurred: With the prior approval of an area director: (a) in non-appeal matters, fees paid for transcripts at rates applicable to legal aid matters; (b) a solicitor's travelling expenses, at rates determined by the council; (c) fees paid to expert witnesses; (d) fees paid for a medical expert or expert in psychology; (e) other disbursements.Interpretation and Translation37 :
- Manitoba has no set limit for the cost of interpreters in refugee claims
- The lawyer must have prior approval for the disbursement in writing from the Area Director 36 Legal Aid Regulation, Man. Reg. 225/91, Part 5. 37 Letter from Cathy Sherman, Deputy Area Director, Legal Aid Manitoba
- In deciding whether to approve of the disbursement for interpretation, the Area Director considers whether a reasonable person of modest means would pay for such a disbursement in light of the potential benefit that it might afford to their case
- If the disbursement is approved it will be for a fixed number of hours payable at Immigration Centre rates. Ontario Legal Aid Ontario receives the highest number of refugee claim applications among the Canadian provinces, over 60% of the national total. Legal Aid assistance services are limited by merit criteria, which often involves private bar lawyers writing Opinion Letters for claimants. Refugee matters are primarily covered by private bar lawyers on a certificate program, however staff lawyers are at the Refugee Law Office and some Community Legal Clinics throughout the province do provide representation. Legal services include filling out the PIF, representation at the IRB hearing, and a separate certificate is required for legal services before the Federal Court, humanitarian applications or Pre-removal Risk Assessment Applications. Funding38 : Source Income Province of Ontario $315.44 million Law Foundation of Ontario $4.84 million Government of Canada (administered through province of Ontario) $53.3 million Contributions from Clients $21.88 million Other $1.93 million Total $344.09 million Eligibility: Financial39 : Family Size Legal Aid Certificate Contribution Agreement 1 Under $10,800 $10,800-$12,500 2 Under $18,684 $18,684-$22,500 3 Under $21,299 $21,299-$26,220 4 Under $24,067 $24,067-$30,120 5+ Under $26,714 $26,714-$33,960 38 Legal Aid Ontario, “How is Legal Aid Ontario funded?” online: http://www.legalaid.on.ca/en/about/fact_funding.asp 39 Legal Aid Ontario, “Certificate Services” online: http://www.legalaid.on.ca/en/getting/certificateservices.asp
Family Size Asset Value Allowed 1 $1000 2 $1500 3+ $2000 Merit40 : Refugee claimants in Ontario who meet the financial eligibility requirements must also meet other conditions to obtain legal aid. These conditions include: x Not having made previous refugee claims in Canada; x Not qualifying for permanent residence through family class sponsorship; x Not having family members who are currently covered for legal aid for a refugee hearing. If these conditions are met, Legal Services Provided will be determined based on the following factors: x Where claimants come from countries that are included on a “Country List” maintained by LAO, they will generally be provided certificates to cover their refugee hearings.
o These listed countries typically have extremely poor human rights records as well as high acceptance rates at the IRB.
x Second, where claimants express fears of listed types of persecution in specified countries, they will once again generally be provided legal aid certificates to cover their refugee hearings. o Listed types of persecution cover groups known to be targeted for persecution (e.g., ethnic and religious minorities, sexual minorities, and women facing domestic violence) in countries that are otherwise regarded as generally compliant with human rights norms. x Where claimants do not fall into either of these two previous categories but meet the financial eligibility and other requirements, they will generally be provided Opinion Certificates, which provide them with funding for three hours to have a private lawyer write an Opinion Letter assessing the merit of their claim.
Legal Services Provided: Legal Aid Ontario uses primarily private bar lawyers to assist with immigration and refugee cases. Several staff lawyers are employed at the Refugee Law Office in Toronto as well as Community Legal Clinics41 ___ 40
Legal Aid Ontario, Area Office Policy Manual: Chapter 5: Refugee and Immigration Law Coverage (October 2009), in: Rehaag, S. (2010). The Role of Counsel in Canada’s Refugee Determination System: An Empirical Assessment.
Service Hours Hearings before the RPD of the IRB x Preparation for a hearing before the Refugee Protection Division of the Immigration and Refugee Board, including interviews, advice, completion of the personal information form, preparation for prehearing proceedings, opinion letters, communications, correspondence and motions x Attendance at hearing of expedited application 16 hours or 13 hours plus 3 hour opinion certificate42 8 hours plus actual time at hearing Detention reviews before an adjudicator of the IRB x Preparation x Preparation for each subsequent detention review x Attendance at hearing 3 hours 1 hour Actual time Submissions to the Minister of Immigration x Inland applications based on Humanitarian and Compassionate grounds x Danger to the public in a deportation matter x Pre-Removal Risk Assessment 10 hours or 7 hours plus 3 hour opinion certificate 10 hours 10 hours or 7 hours plus 3 hour opinion certificate Appeals to the Appeals division of IRB x Deportation order x Denial of sponsorship 16 hours preparation plus actual time at hearing 16 hours or 13 hours plus 3 hour opinion certificate, plus actual time at hearing Application to Federal Court to stay deportation 6.5 hours preparation plus actual time at hearing Application for review in the Federal Court x Preparation for the application for leave to apply for Judicial Review x Preparation for the Judicial Review application x Attendance on the application 15 hours 15 hours Actual time at hearing 41 Personal communication with Carm Runco, Area Director Legal Aid Ontario 42 In September, Ontario will radically alter its method of reimbursement for PIF preparation, creating three separate approval categories based on country lists that will allow either 5 or 3 hours for PIF preparation and a contingent approval for representation at the IRB hearing.
Legal counsel are strenuously objecting to the new system.
x Application for prerogative writ 16 hours preparation, no limit for attendance Appeals 43 : Appeal proceedings require a separate certificate from the area office. Generally an opinion certificate is issued authorizing only an opinion on the merits of an appeal. The opinion is considered by the area committee which then decides whether an appeal certificate should be issued. Service Certificate Appeals to the Federal Court of Appeal x Preparation of motion for leave to appeal x Attendance at motion for leave to appeal x Preparation for appeal x Attendance at appeal 12 hours Actual time at hearing 27 hours Actual time at hearing Appeals to the Supreme Court of Canada x Preparation for leave to appeal x Attendance on application for leave to appeal x Preparation for appeal x Attendance at appeal 17 hours Actual time at hearing 37 hours Actual time at hearing Opinion certificate x For an opinion as to the merits or appeal/judicial review to Superior Court and/or Divisional Court, and to file notice of appeal in the client’s name only, including motion to extend time if necessary 3 hours Country expert reports x Rates vary according to area of expertise, education and experience 2 hour maximum Interpreters x Language: lawyer/client interviews 10 hours or less $31.40 for 1st hour, $19.20 for each subsequent hour Approval required for more than 10 hours Medical Records: Medical report Funding General practitioner Maximum of 1 report from GP at $200 43 Legal Aid Ontario, “Tariff and Billing Handbook” (June 2010) at 4-13, online: Legal Aid Ontario .
Approval required for multiple reports Specialist Maximum of 1 report from specialist at $300 Approval required for multiple reports Quebec After Ontario, Quebec receives the second highest number of refugee claims annually. Legal aid services are provided for all levels of the refugee claims process; certificates are issued for specific services rather than hours. Legal Aid services are not limited by merit screening, however tariffs for services rendered are extremely low. Services are primarily provided by private bar lawyers on a certificate program, though some staff lawyers are employed at the Bureau de l’Immigration in Montréal.
Funding: In the annual report for the Commission des Services Juridiques refugee matters are included in the category “civile/autre” (civil/other), which makes up approximately 37.6% of services provided by staff lawyers, and 26.6% of services provided by private bar lawyers44 . In 2010/2011, the Commission received45 : x $130,116,800 in “subventions de bas” (base grants) x $4,933,149 in grants for “les mégaprocès et dossiers spéciaux” x $2,407,777 from “revenus autonomes et d’intérêts” (independent revenue and interest) Eligibility: Financial: Family Size Maximum Income Single adult $13,573 Adult and child $16,605 Adult and 2 or more children $17,727 Spouses (2) $18,889 Spouses and 1 child $21,134 Spouses and 2 or more children $22,256 Merit: 44 Commission des Services Juridiques, Rapport Annuel de Gestion 2010-2011, at.
53 < http://www.csj.qc.ca/SiteComm/W2007English/_pdf/Rapport_annuel_2011.pdf> 45 Commission des Services Juridiques, Rapport Annuel de Gestion 2010-2011, at. 67 < http://www.csj.qc.ca/SiteComm/W2007English/_pdf/Rapport_annuel_2011.pdf>
No merit screening Legal Services Provided46 : Majority Judicare Model, few staff lawyers at the Bureau de l’Immigration in Montréal. Legal Services Provided offered for all levels of claim, not hourly rate but per service. Immigration and Refugee Board: Service Funding Initial forms seeking asylum $100 CIC meeting regarding eligibility $200 Personal Information Form x Additional family members $200 $75/person All services up to a hearing and final decision $330 Detention (all services) $200 Any additional ½ day of hearing $165 Federal Court: Service Funding Leave $500 Stay $400 Hearing on the merits (Judicial Review) $585 Any other contested motion $120 Any additional ½ day hearing $165 Federal Court of Appeal $1,130 Humanitarian and Compassionate application $200 Pre-Removal Risk Assessment $200 Administrative stay of removal Special considerations Newfoundland So few refugee claims are received by Legal Aid Newfoundland that a staff lawyer is employed to handle refugee cases as needed.
There is no formal financial criteria for Legal Services Provided, leaving financial assessment to the discretion of intake workers, and merit assessment to the discretion of the Area Director at the Legal Aid office where the application is filed.
Funding47 : 46 Personal communication with Peter Shams, Legal Aid Quebec
Legal Aid is funded by the government grants from both federal and provincial governments, and by the Law Foundation of Newfoundland and Labrador. Source Income Professional Services - Grants and Subsidies $14,284,942 Revenue-Federal $49,656 Legal Aid and Related Services $14,235,286 Eligibility: Financial: There is no specific level of income to automatically qualify for Legal Aid. Upon application for Legal Aid, an Intake Worker will compare assets and income with debts and expenses to determine if the claimant has the ability to pay for a lawyer without going into heavy debt.
The Intake Worker will also consider the assets, income, debts, and expenses of the claimant’s spouse and any dependents.
When assessing income, the Intake Worker will consider things such as: x Salary or wages that claimant and spouse receive from employment (or in the case of a youth the income of his/her parents) x Rental income x Investment income x Pension income x Workers’ Compensation benefits x Employment Insurance benefits x Income from spousal support x Income from social assistance When assessing expenses, the Intake Worker will consider things such as: x Basic living expenses for food, clothing, household supplies, and personal items x Reasonable amounts for rent, mortgage, property taxes, insurance, and home maintenance x Utilities including fuel, hydro, water, and telephone x Necessary transportation expenses x Necessary medical, dental, and hospital expenses, including the cost of reasonable health insurance policies x Life insurance premiums x Regular payments made towards a reasonable amount of debts that you incurred before you made your application for Legal Aid 47 Legal Aid Newfoundland, Legal Aid Commission Annual Report 2010-2011, at 21 < http://www.justice.gov.nl.ca/just/publications/2010-2011/Legal_Aid_Annual%2 0Report%202010-2011.pdf>
- Merit: The Area Director of the office at which the claimant applies for Legal Aid will decide based on individual circumstances Legal Services Provided: Few immigration and refugee claims are made in Newfoundland. A staff lawyer is available to respond to applicants needing services. The maximum hours of preparation or attendance in court, travel and accommodation are as follows48 : Service Hours issued* Preparation and attendance in court x All offences within the exclusive jurisdiction of the Trial Division, jury trials, dangerous offender applications and appeals before the Court of Appeal and the Supreme Court of Canada x All matters before a judge alone x Duty counsel x All other matters 50/60 45/55 50/60 45/55 Actual time spent travelling plus waiting time during normal business hours up to a maximum of 5 when the solicitor travels by plane, not including delays due to weather or other circumstances 20 *The two hourly rates contained in this tariff are divided into two categories, denoted (-5/+5), which indicate the rates to be paid solicitors who have been members of a recognized bar association for less than five years and greater than five years respectively.49 Interpretation & Translation50
- The rate usually paid to interpreters is $15/hr and 0.07cents/word for translation of documents o However, the rate is out-of-date and is occasionally increased for less common languages or when interpretation services have to be retained from another province o There is no maximum amount that can be billed for interpretation services o Prior approval from the Provincial Office is needed where interpretation is going to be heavy and that the interpretation services are a necessity o Usually interpretation services on a file costs no more than a few hundred dollars, 48 N.L. R. 1010/96, Schedule B, s. 2(1). 49 N.L. R. 1010/96, Schedule A, s. 9. 50 Letter from Nicolas Summers, Deputy Director – Administrative, Newfoundland and Labrador Legal Aid Commission.
on rare occasions it has been over a thousand dollars Conclusion As stated in the introduction, this report is intended to serve as background information for legal aid administrators and non-government organizations that are engaged in the mapping and potential delivery of legal service needs for refugee claimants under the new refugee claim system to be implemented near the end of this calendar year. It is intended that a second report will be issued by March, 2013, documenting the legal aid services available to claimants from provincial legal aid administrations.
Legal aid administrations do not always compile or record information in the same way.
Some financial and statistical data could not always be reported in a consistent manner. Although eligibility criteria have been provided, it has not been possible to identify the number of claimants who did not receive legal representation. Finally, government programs do not always function in a manner that is fully consistent with stated policy frameworks. If interested parties identify specific errors in the report, please contact Peter Showler at the Refugee Forum. Any errors will be corrected in the final report.