Lawyers stop taking refugee clients on legal aid

September 8, 2012 - All News

By Nicholas Keung
Special to Focus
Some Ontario lawyers have stopped accepting refugee clients on legal aid fearing they won’t get paid under new cutbacks that took effect Thursday.
Under the old payment scheme by Legal Aid Ontario (LAO), lawyers were paid for the work they did preparing refugees’ appeals at the federal court and drafting opinion letters for the clients’ legal aid application, even if LAO ended up rejecting the request.
Lawyers were allowed to bill up to four hours — at about $110 an hour — for researching a client’s case and drafting the opinion letter, an analysis of the refugee’s case.
However, under the new system, LAO won’t reimburse the legal service already invested if it disapproves the legal aid at the end, either because the client earns more than $12,000 a year or the case is deemed unlikely to succeed.
As a result, critics say, refugees must now first fork out the legal fees from their own pockets just to get help in applying for legal aid — unless the lawyer is willing to take a chance and do the preparatory work for free.
“The idea that people now need to spend their own money to just get into the (legal aid) application process is a radical shift,” said Toronto lawyer Raoul Boulakia, a member of the Refugee Lawyers’ Association’s legal aid committee.
“It’s like saying to a doctor whose patient is dying of cancer: ‘You treat this person and pay for all the tests, then we’ll decide later if we’re going to pay you back.’”
According to LAO, the number of legal aid certificates issued to refugees has increased by 9 per cent, from 12,453 to 13,612, over the past two years.
“These measures . . . will help LAO balance increasing client demand with LAO’s own financial obligations to operate within its means,” it said, adding that the changes are expected to reduce expenditures by $1 million a year.
LAO spends about $21 million of its $300 million-plus annual budget on legal aid for cases related to refugees and immigrants; it receives an additional $7 million from Ottawa for these cases.
On average, LAO issues 155 legal aid certificates a month to pay for refugee appeals at the federal court. About 10 to 12 per cent of those appeals succeed.
Toronto lawyer Max Berger said he and other lawyers have stopped taking refugee clients because of the legal aid restrictions.
After the changes came into effect, Berger said, he had to explain to two new clients — an asylum seeker from Iran who needed help to file a claim and a failed refugee claimant from Czech Republic hoping to file a court appeal — that he couldn’t take their cases with the uncertainty over legal aid payments. Both decided to retain him and pay out of their own pockets.
“This is creating a lot of hardship for many refugee claimants, especially those on social assistance, who have to choose between feeding their kids and paying their lawyers,” Berger said.
LAO also unbundled its payment of refugee cases that are before the Immigration and Refugee Board. Now, refugee claimants must apply for two separate legal aid certificates to hire a lawyer to file an asylum claim and attend a hearing.
Critics say the changes make lawyers’ work more difficult because they don’t know if approvals will come through for their attendance at future hearings, or if their preparatory groundwork on a case will be in vain.
“It’s not just about interviewing a client, preparing for their PIF (Personal Information Form). From the start, you need to look for evidence and proofs and coordinate the case,” Boulakia said.
“Everybody right now has practical concerns over the quality of legal representation of refugees because of the unbundling.”
— Torstar News Service