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Law Times • December 5, 2011 IRB influenced by politics eroding IRB: ex-chair." It refl ected strong words and a T strong accusation. It targeted Im- migration Minister Jason Kenney by criticizing him for allegedly eroding the independence of the Immigration and Refugee Board. Th e board isn't just any old body. It's an integral part of Can- ada's complicated immigration and refugee system that decides who gets to stay in Canada and who has to go back to where they came from, sometimes into the hands of the tyrannical despot they fl ed. We can only guess what happens to them then. Let's just say we usually don't hear from them again. Th e accusation against Kenney, who makes a very public show that he loves refugees, didn't come from just anybody. It came from Peter Showler, who was chairman of the board from 1999 to 2002. He's as knowledgeable about the work- ings of the board and our immi- gration system as people will fi nd anywhere. Showler is still aware of refugee aff airs today as head of the refugee forum at the University of Ottawa's Human Rights Research and Education Centre. Showler is also part of the newly formed Canadian Association of Refugee Lawyers, a group orga- nized to stand up for refugees. In seeking out Showler, reporter Don Butler went to someone who knows what he's talking about. But the very next day, just as big a headline appeared on the front page: "Kenney defends IRB ap- pointments." Th e minister rejected Showler's accusation about Conservatives ap- pointed to the board who are "just instinctively less receptive to refu- gee claims." Th e problem for Kenney is that the evidence is convincing. In 2009, Kenney made a big speech accusing Mexican asylum seekers of abusing the Canadian system. It was rare in the past for immigra- tion ministers to slam a particular ethnic community publicly for fear it could bias immigration offi cials and judges involved in the refugee determination process. But that didn't bother Kenney. His government slapped a visa requirement on Mexicans even though those escaping the cartels, corruption, and killings were dying in large numbers. Mexicans seeking refuge in Can- ada went from the largest group of applicants to Canada down to a mere trickle. Even as the Mexican govern- ment pleaded and prodded, the government held fi rm. It was a fi ne way to treat a NAFTA partner, ac- cording to the Mexican president. Th e visa gambit isn't new. Th e government did the same thing to Hungarians and Czechs in order to keep out Roma people. Of course, that decision followed a public lambasting of the Roma by the government. Similarly, the Conservatives went after Tamil refugees coming he accusatory headline in the Ottawa Citizen was clear: "Ministerial chill The Hill By Richard Cleroux over in rusted tubs command- ed by snakeheads and promptly threw them in jail when they got here. But two years later, the party was trying to line up Tamil can- didates for Toronto ridings they wanted to win. Th ey didn't win any of them. So is it coincidence that the people appointed by Kenney to the board just happen to think like the minister talks? It's defi nitely a coincidence, according to Kenney. Noted immigration lawyer Bar- bara Jackman says the problem is the system. Th e government ap- points board members for two, three or fi ve years, after which Kenney or his people assess their performance. Kenney decides who should be reappointed. Does their performance while on the board aff ect their reappoint- ment to their $120,000-a-year job? It's rather obvious that it does. Th e law, in fact, says it should. Right now, about 90 per cent of the board members, including chairman Brian Goodman and his two deputies, are appointees of the Conservative government. Th e board is turning back more refugee applicants than ever before. But it's just coincidence, as Kenney would say. ing A major factor in the develop- confl ict between Canadian immigration lawyers and the gov- ernment goes back to a report pre- pared by Osgoode Hall Law School professor Sean Rehaag, who exam- ined who's turning away refugee applicants. Rehaag discovered that the 30 board members who turned away the most applicants were all appointees of the Conservative government. Is it really just a coincidence? Of course, Kenney would say. Rehaag, however, discovered that one appointee, David McBean, didn't approve a single refugee claim in 169 cases before him. He must have done a good job because Kenney appointed him to another fi ve-year term. Noted immigration lawyer Lorne Waldman says the situation is so bad that when some of his clients hear that they'll be before a par- ticular board member, they break down and cry. Nobody is saying there's minis- terial interference. Th ere's not even the slightest suggestion that Ken- ney calls up board members han- dling a case and tells them to reject the application. He doesn't have to do that. When the board member thinks as the minister does, it would make no sense to rule otherwise. After all, these people aren't stupid. Richard Cleroux is a freelance re- porter and columnist on Parliament Hill. His e-mail address is richard cleroux@rogers.com. pline hearings for more than 10 years, its popularity among the health professions has swung from exuberance to skepticism and cynicism — and back again — all within the span of a decade. So what has changed and why is ADR back in vogue? ADR was once a hot way to settle dis- A putes. Regulators were developing de- tailed ADR guide- lines, processes, and rules, and law schools were treating it as a distinct disci- pline worthy of its own courses. ADR came to the forefront in the context of health care in 1996 when Ontario MPP Elinor Caplan introduced a private mem- ber's bill advocating for a patient's bill of rights. Th e bill consisted of a formal pro- cess for mediating disputes with health- care practitioners. For some regulators, ADR was a panacea for dealing with ever-increasing responsibilities, disputes, and a highly informed public coupled with diminish- ing resources. According to Caplan, the legislation would "assist in education and communication and in my view it will not only benefi t the individuals who are receiving health care, it will also benefi t the providers — the doctors, the nurses, and those under the Regulated Health Professions Act." But for all of its early promise, the lus- tre of ADR within the health profession s quickly began to fade. While the College of Physicians and Surgeons of Ontario successfully mediated more than 100 cases of complaints against physicians, today there's no longer a formal process. So what happened? One of the biggest stumbling blocks for ADR was how to overcome human nature. People in confl ict want blood, vengeance, and validation, and mediators historically have diffi culty creating an en- vironment safe enough for true collabora- tion. In the early days of ADR, the parties often emerged from the process feeling railroaded and coerced. U.S. studies on the motives of mal- practice plaintiff s show that more than 80 per cent of them felt embittered by doctors' responses to their complaints and questions and 20 per cent felt that court was the only way to fi nd out what happened. Th e plaintiff s felt that ADR didn't provide them with any meaning- ful answers and, in turn, many physicians felt that with alternative processes, they lost control over their ability to properly defend themselves. As a result, both sides were either disappointed with the result or they abandoned the process altogether. Th ere were also all kinds of other is- sues that lawyers, professionals, and regu- lators didn't fully appreciate in the early stages of ADR, such as the public's con- cerns over transparency and the spectre of backroom deals. Several newspaper arti- cles exposing ADR's shortcomings when dealing with the regulation of heath-care www.lawtimesnews.com COMMENT Why is ADR back in vogue? Lawyers say benefits a key reason for renaissance in Ontario's health sector BY MARC SPECTOR & JACQUELINE KING For Law Times lthough regulatory bodies have been using alternative dispute res- olution as an alternative to disci- providers came to light. Lawyers were another problem. Stud- Speaker's Corner ies show that once a party agrees to par- ticipate in ADR, the second party also accepts it more than 70 per cent of the time. Still, many lawyers were reluctant to accept ADR as a truly genuine option for resolving these kinds of disputes. Ac- cording to the registrar of one regulator, when health-care practitioners have a lawyer, their willingness to participate in the ADR process usually declines. With- out the professional's acceptance of the process, what likely would have been a real opportunity to resolve a relatively mi- nor dispute suddenly becomes a zero-sum game. Today, however, ADR is again emerg- ing as a viable option when people make complaints against health-care practitioners. Some colleges are reconsidering the practice and others are trying it for the fi rst time. One reason for this interest may relate to what ADR can off er. Turning back to the studies in the United States, when those same malpractice plaintiff s were asked what could have prevented the liti- gation, 35 per cent said an apology or fur- ther explanations would have made a dif- ference. In 2009, legislators encouraged parties to apologize for their behaviour by enacting the Apology Act. It says that an apology can't be construed as an admis- sion of guilt. ADR, then, satisfi es a com- plainant's concerns for acknowledgment in a personal and meaningful way and provides health-care practitioners with a relatively safe venue for doing so. Th e answer may also lie partly in the fact that regulators are becoming better at screening cases appropriate for ADR. ADR tends to be most successful when the matter involves misunderstandings, communication problems, minor lapses of professional skill and competency, al- leged breaches of the duty of confi dential- ity, confl ict of interest issues or any other dispute where the facts are not in question or there's only minimal disagreement. Another reason for ADR's renais- sance may be that regulators are desper- ate enough to try anything that will help them deal with a strained health-care system and the complaints that invari- ably arise with stressed-out patients and their providers. For many colleges, in fact, ADR has resolved more than one- third of all complaints against their mem- bers. Consider that ADR successfully addressed 38 per cent of all complaints against registered nurses to the College of Nurses of Ontario in 2009. Th at was also the case with 35 per cent of all complaints to the Royal College of Dental Surgeons of Ontario last year. So 15 years on, it would appear that Caplan was right about the benefi ts of ADR. Marc Spector is a partner with Steinecke Maciura LeBlanc in Toronto. He's also gen- eral counsel and prosecutor for a number of health-care colleges across Ontario. Jacque- line King, a partner with Shibley Righton LLP, is a mediator who's certifi ed as a spe- cialist in civil litigation by the Law Society of Upper Canada. PAGE 7