Law Times

Page 12 April 11, 2016 • lAw Times www.lawtimesnews.com ADR advocates look to assist refugees to Canada BY JUDY VAN RHIJN For Law Times F or some refugees, conflict is part of the journey to Canada. Alternative dispute resolution advocates are looking for opportunities to assist refu- gees to Canada, and host com- munities. While there is very little ADR involved in the legal system ad- dressing refugee claims, the cur- rent backlog of cases may force the system to adopt new meth- ods of resolution. "We need more proactive programs teaching skills to re- solve conflict," says Daniela Co- hen, who has a master's in con- flict analysis and management and has had broad experience with refugees in Canada and overseas. Having been an immigrant to Canada from South Africa at the age of 16, she identifies with their sense of displacement. "Intercultural conflict can occur when dealing with hous- ing, community services, banks, and schools. We need to build capacity with local family ser- vice providers as well as the fam- ilies themselves." Cohen sees teaching posi- tive conflict resolution skills as a dispute resolution process, al- though not in the same way as post-dispute processes. "We are working on the pre- ventative side. It is a process of breaking down barriers. It is im- portant to focus on that before you need to intervene," she says. Jacqueline Swaisland, an im- migration and refugee lawyer at Waldman & Associates in Toron- to, thinks the proactive efforts are "terrific," but she has yet to see their impact in the legal arena. She is more involved with the formal claim process, where she sees little use of ADR. "e inland refugee claim pro- cess is designed to be non-adver- sarial. ey try and make people as comfortable as possible. For the most part, ADR is not neces- sary at that point," she says. Swaisland says ADR could be used to resolve the current back- log of refugee claims. According to the Refugee Protection Division, there were 10,400 claims as of December 2015. Most of these are what the Immigration and Refugee Board of Canada calls "legacy cases." ese are claims referred to the IRB before the new refu- gee determination system took effect in December 2012. "Refugee protection claim in- take has been steadily increasing on a month-over-month basis, reaching almost 16,000 claims referred in 2015," says IRB spokeswoman Anna Pape. "Since legislative reforms to the refugee claim process came into force on Dec. 15, 2012, the Refugee Protection Division has not had a sufficient complement of decision-makers to hear all claims referred to IRB." e new system has specific regulatory time limits for hear- ings, so the IRB gives scheduling priority to new claims. "Cases under the new system take 60 to 90 days," says Swais- land. "It's very fast. It's cases that ar- rived before the new immigra- tion system that are the concern. People are waiting years." Pape explains that the "pend- ing" inventory also includes new claims that have been postponed for reasons of fairness or natural justice or for lack of confirma- tion of front-end security clear- ance from the Canada Border Services Agency. "Some of the claims within this inventory are also pending due to lack of room on the RPD's hearing schedule," she says. Pape advises that the IRB is taking steps to address the in- ventory. "We recently hired 10 addi- tional decision-makers in Sep- tember and 30 additional deci- sion-makers in January, largely based in Toronto. Both groups have concluded their new mem- ber training and are now hearing and deciding claims. With our complement of 112 members, it is projected that we will be able to finalize approximately 17,500 claims over the next fiscal year. "In addition, we are currently considering options for addi- tional resources so we can make significant inroads into clearing the inventory," she says. e IRB is not currently con- sidering ADR options. "e refugee determination process is not suitable for alter- native dispute resolution as there is no dispute to reconcile," states Pape. "Instead, the claimant must meet the definition of a Con- vention refugee or a protected person under the Immigration and Refugee Protection Act. e RPD's independent decision- makers make this decision on a case-by-case basis in accordance with the evidence before them and the applicable law." Swaisland suggests that it could be possible to use ADR to resolve backlogged cases that are relatively straightforward. She notes there would need to be some way to triage the cases. "Its success would depend on the process," she says. LT FOCUS Fe 2 Please refer to the Federation of Law Societies of Canada website www. sc.ca then click on the link to the National Family Law at the bottom of the home page for further information on registration, accommodation and tourism. All program material will be provided to registrants in digital format, and online. The material can be accessed on your mobile device during and after the program, and is available online for a period of two (2) years after the closing date of the program. Block room rates have been negotiated at the Delta St John's Hotel, which is connected to the new convention centre where all the program sessions will be held (rates apply 3 days pre and post conference). You can also contact the Delta St. John's at 1.709.739.6404 or book through the link on the website listed below. The location is located within walking distance of restaurants and shops. Federation of Law Societies of Canada 2016 National Family Law Program St. John's Newfoundland and Labrador July 11-14 2016 Location: New St. John's Conference Centre July 10 Conference Of ce opens and late afternoon reception On line conference registration is now open! Registration fees include entrance to the conference, all program materials and light refreshments. Call to the Bar prior to 2011 registration fee is $850 plus 13% HST Call to the Bar after 2011 registration is $650 plus 13% HST FederationOfLaw_LT_Feb22_16.indd 1 2016-02-18 9:25 AM Daniela Cohen says there is a need for more proactive programs teaching conflict resolution skills. Refugee protection claim intake has been steadily increasing on a month-over-month basis, reaching almost 16,000 claims referred in 2015. Anna Pape

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