Prominent refugee lawyer’s removal from LAO panel upheld by Divisional Court
Decision to remove Toronto-based Max Berger over billing issues neither unreasonable nor unfair, Court finds
Ontario’s Divisional Court has upheld Legal Aid Ontario’s decision to remove a prominent lawyer from its immigration and refugee panel over billing issues.
Toronto-based Max Berger challenged the provincial agency’s ruling, claiming it was not only disastrous to his practice, but also unreasonable and procedurally unfair.
However, a three-judge Divisional Court panel was not swayed, dismissing the application for judicial review:
“In the present case, the applicant argues that the decision is internally incoherent, that the decision maker misapprehended the evidence, and that the decision maker failed to account for relevant considerations. I disagree,” wrote Justice Stephen Bale for the unanimous panel. “The applicant argues that the process by which the decision maker reached her decision was procedurally unfair, that he was entitled to an oral hearing, and that the removal decision was tainted by unfair investigations. I disagree.”
Since his call to the bar more than three decades ago, Berger has appeared regularly in both print and broadcast media commenting on immigration and refugee matters, as well as before Parliamentary committees discussing legislative amendments in the area.
However, he ran into trouble in 2015 when LAO opened an investigation into allegations he had billed for hearings he didn’t attend and improperly claimed for travel time between his office and the Immigration and Refugee Board on a particular case.
The decision says Berger reimbursed LAO for the inadvertent travel claim and explained the discrepancy between the two IRB hearing days and his five docketed days as due to his inclusion of adjournments. Still, the agency’s investigator concluded Berger had inflated his billing by entering the time for adjournments as contested hearing time and referred the travel issue to LAO’s audit and compliance issue.
In 2016, a second LAO investigation report informed Berger it would seek reimbursement of billings claimed for his law clerk – a licensed immigration consultant with representation rights at the IRB – to attend refugee claim hearings. Berger said he believed he was entitled to bill for her services, but had long since ceased the practice by the time the investigation began, the decision says.
Following Berger’s request for reconsideration of both reports, a third LAO investigator confirmed the earlier findings and recommended his removal from the refugee and immigration panel after highlighting fresh concerns about the lawyer’s billings, based on a sample of his historic dockets.
After considering Berger’s written submissions and denying his request for an oral hearing, the LAO president’s delegate finally concluded there was reasonable cause to remove Berger from the panel in June 2020.
“Mr. Berger has indicated that he has ‘learned his lesson’ from this experience and it will not occur again. However, his response to the allegations does not show that he has accepted the seriousness of LAO’s concerns, as he has continued to minimize the issues in this case,” she wrote. “His past history in this matter demonstrates a pattern of failing to remain current with LAO billing rules and of confirming his compliance with panel standards but not doing so. It is reasonable to conclude that LAO cannot rely on Mr. Berger’s promises to act in accordance with the General Terms and Conditions for Panel Lawyers in the future, and consequently, he should not be allowed to remain on the Panel.”
In his judicial review application, Berger claimed the LAO decisionmaker misapprehended the evidence and took insufficient account of
However, the Divisional Court panel found no error in the decisionmaker’s approach. In addition, the judges rejected Berger’s contention that his removal from the panel was excessive, noting that no lesser penalty was available, while LAO regulations provide a mechanism for restoration.
“In the result, I find the removal decision to have been reasonable,” Justice Bale concluded.
Counsel for neither party responded to a request for comment.
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