Immigration and Refugee Legal Aid Cost Drivers

2. Legal aid cost drivers - a general overview (cont'd)

2. Legal aid cost drivers - a general overview (cont'd)

2.7 Availability of alternatives to legal aid

Not all legal aid work needs to be done by lawyers. Some tasks can be handled quite competently by trained paralegals, who are paid at lower rates than lawyers. Others can be handled by the clients themselves, provided they have access to competent advice as to what is required.

In certain areas of practice where the cost of obtaining legal representation is disproportionately high relative to the matter in issue, consultants and unsupervised paralegals are providing representation services that might otherwise be provided by lawyers. For many clients, these consultants and unsupervised paralegals provide effective representation at a lower price than they would have to pay to be represented by a lawyer [26]. Many of the areas in which consultants and paralegals work are areas of great importance to low-income individuals, who are clients for legal aid. To the extent that consultants and paralegals provide a low cost substitute for legal aid, they have a material impact on legal aid costs.

A key issue with respect to paralegals relates to whether they are supervised or are free to work independently. The Code of Professional Conduct applicable to lawyers in Ontario requires lawyers to supervise all staff, including paralegals, who work for them (Law Society of Upper Canada, 2001: Rule 5.01(2)). There are strict prohibitions against the practice of law for remuneration by anyone who is not an accredited member of the Bar (Solicitors Act, R.S.O. 1990, c.S-15, s.1). Similar restrictions apply in other provinces. There are no comparable limitations with respect to the right of unsupervised consultants to represent clients in immigration and refugee matters before the IRB. Indeed, section 167)(1) of the Immigration and Refugee Protection Act expressly provides that "Both a person who is the subject of Board proceedings and the Minister may, at their own expense be represented by a barrister or solicitor or other counsel"[27].

In theory, at least, considerable savings could be realized by having paralegals do more of the work that is currently done by lawyers. Legal aid authorities in Ontario, and British Columbia cover the salaries of paralegals who work in clinics that the authorities fund directly [28]. However, most plans do not reimburse lawyers in private practice for services provided by paralegals working under their supervision. Nor do they permit immigration consultants or unsupervised paralegals to represent clients on legal aid certificates. Therefore, the scope for delegating work to paralegals is quite limited.

Immigration consultants and unsupervised paralegals are not permitted to represent clients on legal aid certificates; however, lawyers in private practice can charge Legal Aid Ontario for work done by paralegals under their supervision. The Ontario tariff provides for work done by law clerks or paralegals to be billed at an hourly rate of $23. This is considerably lower than the minimum $70.35 that can be charged by junior lawyers. However, the lawyers rarely use paralegals because the tariff rate is not sufficient to cover the associated salary and overhead expenses (Jack Martin, personal communication, August 27, 2002). According to one lawyer from British Columbia, who was interviewed in connection with the related study on Representation for Immigrants and Refugee Claimants, it is economically more attractive for the lawyers to do the work themselves or to pay a salary to a junior lawyer, who can be billed out at a much higher rate.

Some paralegals and consultants who provide these services are highly experienced and quite competent. However, others have no apparent qualifications for the work they purport to do. They are not licensed or subject to regulation by any professional body, and they are not subject to any code of professional conduct. As a result, there are serious concerns about the quality of the services that these unqualified individuals provide. There is a particular concern with respect to some immigration consultants. Refugee claimants are particularly vulnerable to being taken advantage of since they have little way to assess the consultants' competence and little capacity to seek redress if the consultants provide inadequate representation.

From a quality control perspective, it is important that any non-lawyers who are providing services paid for by legal aid be subject to effective supervision by a lawyer. The overall cost impact of providing the necessary supervision, and the savings that might be realized by delegating more tasks to paralegals have not been fully explored. The most recent evaluation of the Refugee Law Office in Ontario suggests that overall costs per case completed are comparable as between the RLO, which utilizes paralegals extensively, and lawyers in private practice representing refugee claimants under legal aid certificates (MacDonald, 2001: 8).

2.7.1 Role for paralegals and consultants

There is considerable scope for making greater use of paralegals in dealing with refugee claimants as legal aid clients. In many cases, it is easier for claimants to relate their stories to an understanding and supportive caseworker who speaks their own language than it is for them to relate to a lawyer with whom they can only communicate through an interpreter. Some lawyers are also able to communicate with clients in their own language without need for an interpreter, but this is not the norm. Paralegals drawn from various ethnic communities play a valuable role in filling this gap. Refugee claimants also have many needs, such as finding suitable housing and accessing social assistance benefits, that are unrelated to their refugee claims but of vital importance to their well-being. Claimants' ability to focus on what must be done to establish their claim to asylum can be seriously compromised if these ancillary needs are not properly addressed. Paralegal caseworkers are often better equipped than lawyers are to deal with these problems.

Many paralegals and support staff working at legal clinics and with NGOs have extensive cross-cultural experience that is of great value when dealing with immigrants and refugee claimants. The positive role played by paralegals and other support staff who have the cultural background and language skills to deal with immigrant and refugee clients in their native languages is cited as one of the special attributes of legal clinics and the Refugee Law Office in Ontario and the Immigration and Refugee Law Clinic in Vancouver (Macklin, 1997: 1003-1005; Social Policy and Research Council, 2002: 9).

A paralegal working for the Manitoba International Interfaith Council in Winnipeg assists refugee claimants in preparing their PIFs. According to the Profile Study of Immigration and Refugee Legal Aid Services prepared by the Social Policy and Research Council, experience with the service provided by the Manitoba project has been favourable (2002: 21). The Legal Aid Society of Alberta (LASA) has also initiated a pilot project under which it provides paralegal support to lawyers in Calgary. Experience with this project has been more mixed than in Manitoba, but this is attributed to unfamiliarity with the service rather than to any shortcoming in the quality of support provided (Social Policy and Research Council, 2002: 15-16). Lawyers from Calgary who were interviewed in connection with the Representation Study are generally pleased with the service being provided by the LASA paralegal (Frecker, Duquette, et al., 2002).

Many paralegals and consultants who work with immigrants and refugee claimants are well qualified and provide high quality service. However, there are many instances of persons purporting to provide paralegal and consulting services for which they have no qualifications. There are also incidents of unscrupulous immigration consultants exploiting and defrauding unsuspecting clients who are completely unfamiliar with the Canadian legal system and have no idea of where to seek recourse [29]. Low income clients of immigration consultants are especially vulnerable. Many of them are newly arrived in Canada. They have limited skills in either official language, and they are totally unfamiliar with Canadian legal processes. They have no way of assessing whether the level of service they are receiving is competent or whether it is worth what they are being charged[30].

Respondents interviewed in connection with the study on Representation for Immigrants and Refugee Claimants (the Representation Study) currently being carried out by the author of this report have pointed out that legal issues raised in refugee claims can be quite complex and challenging even for lawyers with extensive experience in the area. Carefully focused debriefing of claimants and close analysis of their stories is sometimes required to identify the legal basis for claims. The stakes are extremely high since failure to establish a valid claim may result in removal of the claimant to the country where he or she faces persecution, possibly even death. It is therefore important that access to competent legal advice not be arbitrarily restricted.

At the same time, respondents for the Representation Study also note that the issues in many refugee claims are readily apparent. All that is required is that someone who understands the basic legal requirements to establish refugee status be available to assist claimants in preparing their PIFs. In such cases, the role of the paralegal is to make sure the claimant's story is presented in an orderly and readily understood fashion and that all of the key requirements are properly addressed in the PIF.

These respondents suggest that some services that are currently being provided by lawyers, particularly with regard to initial client interviews and preparation of PIFs in routine cases, could reasonably be transferred to paralegals without compromising quality of service. They note, however, that it is important that there be some legal supervision to ensure quality of service and to ensure that important legal issues are not overlooked. This can be accomplished through clinics and staff offices, as is currently being done to a limited extent. It can also be accomplished by implementing measures to encourage utilization of paralegals by members of the private bar who provide legal aid services.

It is reasonable to suppose that increased use of paralegals for delivery of immigration and refugee legal aid services has potential to produce cost savings. Based on limited experience with the RLO and community legal clinics in Ontario and the IRLC in British Columbia, however, it is not entirely clear whether use of paralegals does, in fact, reduce costs. According to Wong-Rieger (1996), lawyers and paralegals working together at the RLO spent more time on individual cases than do lawyers who represent refugee claimants under legal aid certificates. The quality of services provided by the RLO is acknowledged to be high. But in the RLO's initial years of operation, the average cost per case at the RLO was higher than the cost for cases handled by lawyers in private practice [31]. By 2001 that cost differential had disappeared (MacDonald, 2001). However, extensive utilization of paralegals has not enabled the RLO to handle cases at a lower cost than that charged by lawyers in private practice.

The reasons for the higher costs at the RLO are quite complex and cannot be attributed simply to the fact that more time is being spent on individual cases. Macklin (1997: 999-1002) suggests that the restricted mandate of the RLO has prevented it from building a sufficiently large client base to realize economies of scale that might make it more cost-effective. Also, the calculation of average cost per case in the evaluation carried out by Wong-Rieger does not fully factor out the cost of ancillary services, such as public outreach, that are provided by the RLO.

It is not possible, in the limited context of this study, to provide any detailed calculation of extent of possible savings that might be realized by having paralegals provide to immigrants and refugee claimants some of the services currently provided by lawyers. Detailed analysis of the range of services that can be provided by paralegals and the probable cost of such services requires empirical research. This is the subject of related pilot project evaluations currently underway in Alberta and Manitoba.

2.7.2 Assisted self-representation

Assisted self-representation is a variant form of service delivery for people who do not qualify for legal aid. It combines public legal information with summary advice, and, in some cases, limited legal assistance. To the extent that assisted self-representation enables individuals to participate effectively in legal proceedings without need for counsel, it may be an effective option in minimizing legal aid costs. However, results from the one published evaluation of a pilot project on assisted self-representation suggest that the potential utility of this option is limited. In that project, the Legal Services Society in British Columbia provided a brochure to rejected legal aid applicants informing them on how to defend themselves in criminal proceedings. The evaluation of this project found that the material helped to alert the clients to the seriousness of their situation; however it did not prepare them to defend themselves effectively on their own (Currie, 2000: 314, footnote 90, citing Currie and McEown, 1998).

Legal Aid Ontario has experimented with a program under which family law clients are provided with a certificate for a few hours of legal advice from a private bar lawyer to get advice or assistance on drafting documents. To date there has been no published evaluation of this project. However, Legal Aid Ontario reports that evaluations of this and other pilot initiatives indicate significant savings, client service quality improvements and better case management as results (Legal Aid Ontario, 2001c: 37). This "unbundling" of legal services is intended to enable clients to handle routine aspects of cases that do not require a lawyer (Mosten & Borden, 2000). This may be an effective option for minimizing legal aid costs in cases where full service legal representation is not required, for example for uncontested divorces where there are no issues relating to custody or division of property. However, summary advice of this sort is not likely to be very effective in cases involving immigrants and refugee claimants who have limited skills in English or French and limited familiarity with the Canadian legal system. Also, one may surmise that such advice is of limited utility in cases where the legal and procedural issues are complex and the consequences for clients may be severe if their case is not properly presented.

The possible effectiveness of assisted self-representation in the immigration and refugee context is questionable. With immigrants and refugee claimants, there are the added problems of ability (or lack of ability) to work in either of Canada's official languages and a general unfamiliarity with the Canadian legal system. A very limited number of the immigrants and refugee claimants who are currently represented in proceedings before the IRB might have sufficient background with legal process in general and sufficient ability to work in English or French to prepare and present their own case. But that number is small.

A first challenge with assisted self-representation for immigrants and refugee claimants would be to develop appropriate reference materials that could be used by the persons concerned. The linguistic backgrounds of the people who appear before the CRDD are enormously diverse. The CRDD uses interpreters in more than 130 different languages and dialects for refugee hearings. Even limiting oneself to the top ten source countries in each region (which change on a regular basis), 16 distinct language groups were represented in the quarter ending December 31, 2001. This number is fairly typical, though the mix of which language groups are included frequently changes. The cost of developing support materials and translating them into all of these languages would be significant, and even with such resource material available, a significant portion of the intended clientele would be unable to use them effectively.

At detention reviews and refugee hearings it is common to observe that the persons concerned have little comprehension of the exchanges that take place between their representatives and the tribunal members, even when the exchange is translated into their own language by the interpreter. They find it difficult enough to present their story in response to specific questions that are put to them by their representative. It would be even more difficult for them if they had to conduct their case without the assistance of some representative who has a basic understanding of the process to guide them in the presentation of their claim.

In the experience of the author and many CRDD members with whom the author has worked, cases involving unrepresented claimants are especially difficult [32]. Despite best efforts of tribunal members to put the claimants at ease and to explain the process to them, claimants have great difficulty understanding why they are being asked to focus on specific issues that appear to underlay their claims. Many refugee claimants, even those who are represented, feel compelled to share their cumulative lifetime experience with the tribunal. In the context of a refugee hearing, it places tribunal members in a very difficult position to have to constrain claimants' presentation of their stories in order to get to the key issues on which the claims are based. When this can be done through a representative, there is less risk that the proceedings will appear to be unfair and arbitrary to the claimant. When it must be done with unrepresented claimants, it frustrates claimants and often makes them feel they are not receiving a fair hearing.

Given these considerations, it is difficult to envision how assisted self-representation can be adapted for use in the immigration and refugee context. Therefore, it is not regarded as offering significant cost saving potential for legal aid programs.

2.7.3 Role for NGOs and community support groups

Many non-government organizations (NGOs) and community support groups are actively involved in supporting clients who require assistance to deal with legal issues relating to housing, human rights, and access to social benefits. A substantial portion of legal aid work on the civil law side relates to these same issues. Given the overlapping interests of legal aid authorities and these support groups, the question arises whether there may be more effective ways to coordinate the efforts of both to ensure that legal aid is delivered in the most cost-effective manner possible to those who need it. To date, there has been no serious examination of how this might be accomplished and no assessment of what impact such a development might have on legal aid costs in Canada.

Most NGOs that work actively with immigrants and refugee claimants are focused primarily on providing settlement services, such as language training, skills training, and other services to assist newcomers in getting established in Canada. A limited number of groups do provide representation support to refugee claimants with respect to establishing refugee status in Canada, but this is the exception, not the norm [33]. Many of these groups rely on volunteers and they do not have the resources to deliver legal support services in any systematic way. They also lack the administrative structure needed to take on this responsibility.

Individuals from the NGO sector have expressed concerns that their organizations might be called on to fill the gap if legal aid services for immigrants and refugees are curtailed. They feel that taking on such a role would require radical change in the way their organizations are structured, changes so fundamental that they would alter the very character of the organizations as they know them. They have a strong preference for maintaining legal aid with extensive involvement by lawyers [34]. For this reason, the scope for NGOs and community support organizations to take on a significant role as an alternative to legal aid appears to be limited.

The most likely way in which these organizations might become involved in delivery of legal aid services is as a working base for specialized paralegals who could assist refugee claimants in much the same way that paralegals working in community legal clinics currently do. However, for the reasons already noted in the discussion on the role of immigration consultants and paralegals, there is need for some form of lawyer supervision. This would have to be factored into any estimate of what it might cost to deliver legal aid services through NGOs and community support organizations. Franchising arrangements could possibly facilitate the use of supervised paralegals and NGO workers to deliver some required services in relation to immigration and refugee matters. This could serve to reduce legal aid costs. However, careful evaluation of appropriately designed pilot projects is required before any definitive conclusion can be drawn in this regard.