Immigration and Refugee Legal Aid Cost Drivers

6. Procedural requirements as a cost driver

6. Procedural requirements as a cost driver

6.1 Initial determination of status

6.1.1 Expedited determination of refugee claims

Section 170(f) of the Immigration and Refugee Protection Act provides authority for the RPD to grant refugee status without a hearing [73]. The process for expedited determination of well-founded claims is established in RPD Rules (s. 19) [74]. Expedited interviews, on average, are completed in about one hour, which is roughly a quarter to half the length of regular hearings.

The RPD endeavours to stream manifestly well-founded claims into the expedited process. Provided the claimant is able to credibly recount the circumstances that have given rise to the claim and identity is not in issue, cases involving severe trauma are generally well suited for determination without a hearing. The interview format for expedited determination of refugee claims is generally less stressful for traumatized claimants. It is also more cost-effective for the RPD to determine well-founded claims without a hearing wherever possible.

Legal aid costs are considerably lower for cases dealt with through this expedited process than they are for cases determined in hearings. Macklin (1997:1013) noted that one of the factors driving high legal aid expenditures for refugee cases under the Ontario Legal Aid Plan was the fact that at the time, virtually no cases in the Toronto CRDD were being accepted through the expedited process. In contrast, at the Montreal office, approximately 40% of positive determinations were being made following an interview with the claimant in the expedited process.

The IRB further distinguishes between short, single issue hearings, which are expected to be completed in less than two hours, and regular hearings, which involve more than a single issue and typically take three and a half to four hours to complete. The legal aid cost for attendance at an expedited interview is one-half of the cost for attendance at a short RPD hearing [75]. Under the Ontario tariff, the time allowed for preparation is also reduced by half for cases determined through the expedited process.

The IRB has issued a policy directive encouraging members to determine well-founded claims through the expedited process wherever possible (IRB, 2001d). The RPD is currently endeavoring to stream 25% [76] of all referrals for consideration in the expedited process (Glen Bailey, interview, March 21, 2001). For the quarter ending on December 31, 2001, 8% of all cases screened were streamed for expedited consideration and 20% of all positive decisions were made without need for a hearing. Approximately 60% of the cases where expedited interviews were held resulted in positive decisions. The remaining 40% were remitted for a hearing. If the RPD is successful in increasing the portion of claims accepted through the expedited process, this should reduce the effect on legal aid costs.

Increasing the portion of positive decisions that can be made on the basis of an expedited interview is an objective that is shared by the IRB and by legal aid authorities. However, achieving this goal involves complex trade-offs. An expedited interview with the claimant is a first, essential step to determining any claim without a hearing. To maximize the chances for identifying claims suitable for expedited determination, the RPD must cast the net wide and interview as many claimants as possible. However, as the screening to identify cases suitable for expedited interviews becomes more inclusive, the percentage of interviews that will result in positive determinations will tend to decline. As one culls off the most obvious well-founded claims, it becomes increasingly difficult to identify the remaining claims that are likely to be accepted without a hearing.

Based on past experience in dealing with refugee claims, the author estimates that roughly one-quarter of the well-founded claims referred to the CRDD are suitable for determination without a hearing. Given the frailty of evidence and problems with claimant credibility, it becomes increasingly difficult beyond that point to identify additional well-founded claims without holding a hearing. The diminishing return that comes from streaming a progressively higher portion of referred claims for expedited interviews is illustrated in Chart 8. This chart is based on a rough working assumption that a 60% "capture" rate in the expedited process can be sustained up to 150 interviews per 1,000 referrals. At 300 interviews per 1,000 referrals, it is assumed that 45% of the interviews would result in claims being accepted without a hearing. At 400 interviews per thousand, the "capture" rate would decline to 35%, and so forth[77].

Chart 8 – Effect of Increasing the Number of Expedited Interviews

Effect of Increasing the Number of Expedited Interviews
[Description of Chart 8]

If the net is cast too wide and many cases end up being remitted for hearing after the interview, the exercise will tend to drive up costs. It will also produce delays as claims that are considered but not accepted in the expedited process are put through two processes instead of one. There comes a point at which this results in an overall increase in average cost per case, as is illustrated in Chart 9.

Chart 9 – Increasing Number of Expedited Interviews - Average Cost per Case

Increasing Number of Expedited Interviews - Average Cost per Case
[Description of Chart 9]

The balance between the number of cases that can be determined without a hearing and the number of cases for which a hearing is required has a direct effect on legal aid costs. In reviewing legal aid cost drivers, it is useful to examine the various factors that influence the extent to which the expedited process for determining manifestly well-founded claims is used.

The analysis of the impact of supplier-induced demand, set out in section 1.5.3 above, suggests that lawyers doing legal aid work will attempt to maximize their incomes in different ways depending on the economic incentives created by different legal aid tariff structures. Lawyers who are paid for time spent in hearings might reasonably be expected to be less enthusiastic about expediting refugee claims than would be the case for lawyers who are paid a flat fee and want to maximize the number of cases they can conclude in a given time period. This expectation is, to some extent, borne out in experience with utilization of the expedited process in Quebec, Ontario and British Columbia.

Legal aid tariffs in Ontario and British Columbia provide an hourly rate for time spent in hearings. The Quebec tariff provides a flat payment per case. For many years, the CRDD in Montreal expedited close to 40% of its positive decisions while Toronto and Vancouver expedited almost none. This difference may in part have been conditioned by differences in the legal aid tariffs, as Quebec lawyers had a clear incentive to maximize the number of cases they handled and Toronto and Vancouver lawyers had an incentive to maximize the time spent in hearings. However, one must be careful not to jump to conclusions prematurely, based on the simple observation that fewer cases have been expedited in provinces where the legal aid tariff provides an hourly payment for time spent in hearings.

Other factors were also likely in play to produce these differences. During these years, the Montreal office had a larger caseload per CRDD member than did the offices in Vancouver or Toronto. Managing the intake was the key priority in the Montreal office. Also, Montreal had a well-established unit of refugee claim officers (RCOs) assigned to work with a single CRDD member in a specialized unit dedicated exclusively to handling expedited claims.

In the mid to late 1990s, RCOs and CRDD members in Toronto had strong antipathy towards expediting claims, feeling credibility could only be tested effectively in the context of a hearing. The situation in Toronto changed when some of the key opponents to the expedited process left the IRB. This coincided with a dramatic increase in the caseload in Toronto, which forced everyone in the region to look for ways to increase productivity. As a result, the CRDD in Toronto is now expediting a significant number of refugee claims [78]. At the same time, utilization of the expedited process in Montreal has dropped back from the very high levels seen in the mid-1990s and is now comparable to the utilization rate in Toronto.

The recent dramatic increase in the number of refugee claims referred to the CRDD in Toronto has resulted in more work being available to members of the refugee bar in Toronto. The prospect for increased volume of work may make the expedited process more attractive for counsel than would be the case when there is a shortage of work.

In jurisdictions that pay lawyers at an hourly rate, as opposed to paying on a block fee or flat fee basis, level of utilization of the expedited process has a direct impact on legal aid costs. The foregoing observations suggest that the interplay of work pressures on the RPD, the commitment of IRB personnel to utilization of the expedited process, and incentives on counsel to push for expedited processing of refugee claims, all affect what portion of refugee claims will be expedited. All of these factors, of course, are subject to one key overarching factor, that is the portion of potentially well-founded claims in the overall caseload, which determines what portion of refugee claims can reasonably be expedited.

6.1.2 Determination of claims in hearings

In provinces that pay lawyers an hourly rate for time spent in hearings, the duration of hearings is clearly a cost driver for legal aid. The longer the hearings, the more the legal aid authority will be required to pay. The length of RPD hearings is a function of a complex interplay of factors. These include the complexity of each case, the presiding skills of the RPD member, the length of questioning by the RCO, and the ability of witnesses to give clear and concise testimony. Claimants' counsel also influence the length of hearings. The manner in which they present a case, their style of questioning, interaction with other parties, and the number of witnesses they call all affect how long it takes to conclude a hearing.

Bevan (1966) has hypothesized that lawyers who are paid at an hourly rate have an incentive to maximize the number of hours spent on the task for which they are being paid. If this is correct, one would expect to find that refugee hearings tend to be longer in jurisdictions where the legal aid tariff pays lawyers an hourly fee for time spent in hearings than in jurisdictions where lawyers are paid a flat fee per case. This factor may be influencing the differences in average duration of refugee hearings in the different IRB regional offices (see Table 4).

Table 4: CRDD Hearing Statistics by Region : March 1, 2001 - February 28, 2002

According to IRB data on CRDD operations during fiscal year 2001-02, the average length of refugee hearings in Montreal was almost 20% less than in Toronto and 33% less than in Vancouver. Lawyers in Montreal are paid a flat fee for each case regardless how much time they spend on the case, whereas lawyers in Toronto and Vancouver are paid an hourly fee for actual time spent in hearings. Taking the national average of 3.5 hours per hearing as a benchmark, the extra time spent in hearings in Vancouver represented an additional cost of $112 [79] per case, or roughly $132,000 if one extends that cost to the 1184 hearings concluded in Vancouver in fiscal year 2001-02. The 3.7 hours average hearing time in Toronto is only slightly higher than the national average, but given the number of claims determined in hearings in Toronto, even this slight difference represents a cost for Legal Aid Ontario of roughly $98,000 [80]. If the average hearing time in Toronto were reduced to the 3.1 hours achieved in Montreal, legal aid costs would be reduced by almost $294,000. It must be noted that this analysis does not control differences in the composition of the caseload in each region and other factors, such as the presiding style of RPD members and the manner in which protection officers (formerly known as RCOs) handle examination of witnesses. These factors also have a significant influence on duration of hearings. The observation is simply made to flag the fact that there is a possible correlation between legal aid tariff structures and the length of hearings.

Over the past few years the IRB has implemented measures to improve productivity, including measures to reduce the length of refugee hearings and to increase the number of cases that are concluded in a single sitting. As these measures take effect, they may help to reduce some legal aid costs. However, there are other forces at play that may increase the time required for RPD hearings. These are discussed in detail in Chapter 6 below.

6.2 Judicial review

Decisions of the RPD are subject to judicial review on leave of a judge of the Federal Court. In 2001, leave was sought in approximately 63% of cases where refugee claims were rejected. According to the IRB, leave is granted in approximately 12% of the cases where it is sought, and roughly 12% of the decisions reviewed are overturned (see Table 6) (Hasan Alam, personal, communication, April 8, 2002) [81]. When a decision is overturned on judicial review, the case is remitted back to the Board to be determined again, usually by a different panel.

Table 5
Judicial Review Outcomes: 2001
Number % of level above
CRDD negative decisions 7115 100%
Leave applications 4490 63.1%
Leave granted 557 12.4%
CRDD decision overturned 69 12.4%

Judicial review proceedings drive legal aid costs in three ways. First, there are the direct costs associated with the proceedings - filing fees, fees paid to lawyers to draft pleadings, to prepare for the hearings, to argue the application before the court, to review the court's decision, and to communicate that decision to the client. Second, there are the indirect costs relating to procedural requirements imposed by the court. If procedures were less complex, lawyers would require less time to handle each application. Third, there are the consequential costs that flow when decisions are quashed and claims have to be reheard. This results in repeat legal aid expenditures on cases that have already been funded for the original refugee determination hearing.

Proceedings in the Federal Court are sufficiently complex that it is not practical for claimants to pursue judicial review applications without the assistance of a lawyer. Claimants are permitted to represent themselves if they choose to do so, but if they wish to be represented by someone else, only lawyers are permitted to plead cases before the Federal Court.

Table 6 provides a brief overview of tariffs for judicial review applications in each of the five provinces that deliver legal aid representation through the private Bar. [82]

Table 6
Legal Aid Tariffs for Judicial Review
Opinion letter & Notice Preparation of leave application Preparation of judicial review application Attendance at Federal Court
British Columbia $80 / hour >5 hours = $400 >15 hours = $1,200 >10 hours = $ 800 Actual time
Alberta $72 / hour Check civil action tariff >5hours >10 hours for drafting, filing and service = $720 >10 hours for briefing of law = $720 $155 / half-day
Manitoba $45 / hour $480 $855
Ontario $70.35-$89.74 / hour >14 hours >15 hours >15 hours Actual Time
To maximum 27 hours total preparation = $1,900 - $2,423
Quebec $345 $200 / half-day

Source:

All six provinces that cover immigration and refugee matters provide legal aid for judicial review applications in the Federal Court. Funding is approved on a discretionary basis following a review of the merits of each application and an assessment of the prospects for success. Tariffs provide a certain number of hours for preparation of the leave application. If the leave application is successful, the tariffs provide additional hours for the judicial review application itself, including time to prepare the factum and time to argue the case at the Federal Court. Tariffs also prescribe amounts for proceedings in the Federal Court of Appeal and the Supreme Court of Canada, but these apply in very few cases and so are not included in Table 6. Access to the Federal Court of Appeal is limited to cases where the Trial Division judge who has decided a judicial review application certifies that the case raises a serious question of general importance and the trial judge states that question (Immigration and Refugee Protection Act, s.74(d)). All legal aid plans that cover immigration and refugee cases will normally approve funding to take a case to the Federal Court of Appeal where a certificate is granted. The number of these cases is so small, however, that they do not represent a significant legal aid cost driver.

A breakdown of legal aid expenditures for judicial review in immigration and refugee cases is currently not available. From data provided by LSS, it appears that approximately $680,000 was paid in fees related to judicial review applications in 2000-01 [83]. This includes judicial review of decisions from all three Divisions of the IRB and judicial review of certain decisions made by officials at CIC. Fees paid in relation to judicial review proceedings represent approximately 17.5% of all fees paid by LSS in relation to immigration and refugee matters in that year [84]. Legal Aid Ontario reports that expenditures on judicial reviews relating to immigration and refugee matters totaled $654,794 in 2000-01 and $690,291 in 2001-02 (Roderick Strain, memo to Mary Marrone, June 11, 2002).[85]

The overall cost of this aspect of immigration and refugee legal aid has been kept down by the fact that leave for judicial review is granted in such a small portion of cases. This situation could change significantly if, following implementation of the new Immigration and Refugee Protection Act, there is an increase in the number of cases where leave is granted as the Federal Court is called upon to clarify issues of interpretation with respect to the new legislation.

6.3 Sponsorship appeals

Sponsorship appeals are rarely covered by legal aid. In all cases except those involving sponsorship of spouses, fiancés and dependant children, sponsors are required to have financial capacity and a level of income that effectively makes them ineligible for legal aid. Individuals in this situation are represented at IAD appeal proceedings either by legal counsel or by immigration consultants, whom they pay directly for the services provided.

Many permanent residents who are attempting to sponsor spouses, fiancés and children are also in an income bracket that disqualifies them for legal aid. The most likely clients for legal aid in sponsorship appeals are refugees who have been landed as permanent residents and who are attempting to sponsor their spouses or children for purposes of family reunification (Nancy Goodman, personal communication, June 20, 2002) [86]. The typical problem in these cases relates to establishing the familial relationship, which can sometimes be quite difficult. Refugee families may have been separated for many years. The sponsor and the sponsored family members may not have reliable identity documents. For children in these cases, DNA testing is sometimes the only way to establish the relationship, but this expense is not covered by legal aid[87]. While these cases are quite complex, the number of such cases where legal aid is sought is small. For example, Legal Aid Ontario expended only $138,389 on proceedings before the IAD in fiscal year 2001-02 (Roderick Strain, memo to Mary Marrone, June 11, 2002). This was less than one-tenth of one percent of LAO's total expenditures on immigration and refugee matters in that year. As a result, sponsorship appeals cannot be considered a significant legal aid cost driver.

6.4 Pre-removal proceedings

Under the former Immigration Act, unsuccessful refugee claimants who were facing removal had two additional avenues of recourse beyond judicial review. They could apply for admission to Canada as a member of the Post Determination Refugee Claimants in Canada Class (PDRCC), and they could submit a humanitarian and compassionate appeal (H&C). The risk-related criteria under which a claimant could be granted protection under the PDRCC process or under an H&C appeal have been subsumed in the definition of "a person in need of protection" in section 97(1) of IRPA. As a result of these changes, the grounds on which the RPD can grant protection to refugee claimants have been widened. But at the same time, the post-determination recourse available to failed refugee claimants has been considerably narrowed. Under the new legislation, failed refugee claimants may apply for a pre-removal risk assessment (PRRA), which is carried out shortly before the planned removal of the individual to another country. An appeal to the Minister on humanitarian and compassionate grounds is still available, but this is limited to issues relating to the applicant's situation in Canada and has nothing to do with possible risks the person may face if removed to another country.

Experience with the PRRA process in the few months since IRPA came into force is too limited to permit any meaningful assessment of the potential impact that these changes may have on legal aid costs. However, a review of the experience with PDRCC and H&C appeals does provide a useful starting point for such an assessment. PDRCC was a class prescribed in regulations under which unsuccessful refugee claimants would be allowed to stay in Canada if they were determined to be at risk of death or serious harm in the country to which they were to be removed. There was no requirement that the harm feared be related to any specific ground, as is a requirement for refugee status. However, the risk of harm had to apply to the individual personally, not merely as a member of a class of persons subject to a common risk. PDRCC applications were assessed in an administrative, as opposed to a tribunal process. The risk assessment was made by a CIC officer based on a review of a written application, supplemented by the record from the CRDD status determination hearing and general information about conditions in the country to which an unsuccessful claimant might be removed.

Unsuccessful refugee claimants facing deportation can apply to remain in Canada on humanitarian and compassionate grounds. H&C applications focus primarily on the personal circumstances of the applicant in Canada, rather than on the risk the applicant may face in the country of return. H&C assessments sometimes take into account risks that applicants might face if they were returned to their home country. But with the expanded protection grounds provided under IRPA, the RPD is supposed to consider this sort of risk when deciding the refugee claim. Immigration officers from CIC review written submissions in support of H&C appeals and they make a recommendation to the Minister, who has discretion to allow the applicant to remain in Canada under a Minister's permit [88].

British Columbia and Alberta were the only provinces that provided legal aid coverage for PDRCC submissions. In both provinces, coverage was provided only when the legal aid authority was satisfied that the application had merit. The legal aid tariff in British Columbia allowed for up to 3 hours ($240) for all work relating to a PDRCC submission. Alberta allowed up to 5 hours ($360) for such submissions (Pat Bard, e-mail to Austin Lawrence, Department of Justice, Canada, March 1, 2002). The Legal Services Society in British Columbia expended $66,416 on PDRCC submissions in 2000-01. This represented 1.7% of the total expenditure on fees relating to immigration and refugee matters in that year (Legal Services Society, 2001a). Data on what portion of the Legal Aid Society of Alberta budget for immigration and refugee matters was devoted to PDRCC submissions is not available.

As with PDRCC, legal aid for H&C appeals is discretionary and is approved based on a review of the merits of each application. Coverage, similar to that provided for PDRCC applications, is available in British Columbia and Alberta. Coverage is also provided in Manitoba and Ontario (Social Policy and Research Council, 2002) and to a limited extent in Newfoundland (Nick Summers, interview 25 May 2002).

The only data available that segregates the amount paid with respect to H&C submissions is from British Columbia, where LSS paid $19,096 in fees in 2000-01. In data from Legal Aid Ontario, H&C submissions are subsumed with detention reviews and "danger opinion" submissions in a category labeled "other immigration, which together accounted for only 2% of the total LAO immigration and refugee budget in 2001-02. The number of applications approved for coverage is the primary legal aid cost driver in relation to PDRCC and H&C appeals. But in the overall scheme of things, total expenditures in relation to these proceedings are so small that they cannot be regarded as a significant factor driving overall immigration and refugee legal aid costs.

Table 7: Legal Aid Tariffs for PDRCC and H&C Appeals

Table 7 provides a summary of available data respecting tariff allowances for PDRCC and H&C applications in the provinces where coverage for these applications is available. The Ontario tariff allows up to 10 hours for H&C submissions, whereas BC allows only 3 hours [89]. Alberta allows 3-4 hours [90] for an opinion with respect to any post-determination appeal. A further 5 hours is allowed under the Alberta tariff for post-determination hearings. It is unclear whether this includes PDRCC and H&C submissions since these applications are based on written submissions and there is no hearing as such. The Manitoba tariff prescribes a flat fee of $425 for H&C applications, which is equivalent to slightly under nine hours at the current $48 per hour rate paid under the Manitoba tariff.

It is unclear whether legal aid costs in relation to PRRA will be as limited as they have been in relation to PDRCC and H&C proceedings. On the one hand, pre-removal risk assessments are quite different from PDRCC and H&C assessments. The grounds for protection in the PRRA process are the same as those applied by the RPD, whereas the protection ground applied in PDRCC and H&C cases were different from those applied by the CRDD in the original decision. On another level, PRRA is limited to review of new evidence that was not reasonably available when the claim was originally decided.

The key factors with respect to legal aid costs are the nature and extent of coverage that individual plans provide, and the complexity of the proceedings for which coverage is provided. Whether coverage for PRRA will be more extensive or more limited than the coverage previously provided for PDRCC and H&C applications is a matter within the control of individual legal aid authorities. The issue of what sort of coverage is likely to be required for PRRA is addressed in more detail in section 6.1.3.1 below.


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