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Canada Immigration: How to Choose a Legal Representative

Written by Henry J. Chang
Updated April 14, 2012
Introduction

Finding a qualified legal representative for a Canadian immigration case is often a challenging task. The first issue that potential clients should consider is whether their proposed legal representative is lawfully permitted to represent them. To address this issue, it is important to understand the current regulatory framework and its historical development.

The Historical Development of Immigration Consultants in Canada

Formal recognition of the right of non-lawyers to act as paid representatives in Canadian immigration matters (based on the language contained in the former Immigration Act, the predecessor to the current Immigration and Refugee Protection Act, S.C. 2001, c. 27) occurred when the Supreme Court of Canada rendered its decision in Law Society of British Columbia v. Mangat, 2001 SCC 67, [2001] 3 S.C.R. 113. Prior to this decision, immigration consultants were often tolerated due to the reluctance of many (but not all) provincial law societies to prosecute these individuals.

Mangat was an immigration consultant carrying on his work through an immigration consulting company known as Westcoast Immigration Consultants Ltd. ("Westcoast"), which was located in British Columbia. He had not studied law in Canada and was not a member of the Law Society. Mangat and other Westcoast employees engaged in a number of activities involving immigration proceedings.

The Law Society of British Columbia brought an application seeking a permanent injunction against Mangat and Westcoast to prevent them from engaging in the ongoing practice of law, in contravention of the B.C. Legal Profession Act. Mangat and Westcoast admitted that they were engaged in the practice of law within the meaning of s. 1 of the Legal Profession Act, but contended that their conduct was sanctioned by ss. 30 and 69(1) of the Immigration Act, which permit non-lawyers to appear on behalf of clients in Canadian immigration matters.

The judge issued the injunction on the grounds that ss. 30 and 69(1) of the former Immigration Act did not authorize the practice of law. Alternatively, she would have granted the injunction on the basis that the provisions were ultra vires Parliament. The British Columbia Court of Appeal then set aside the injunction.

The British Columbia Law Society subsequently appealed to the Supreme Court of Canada. The Supreme Court of Canada was asked to consider whether ss. 30 and 69(1) of the former Immigration Act were intra vires Parliament, and whether s. 26 of the Legal Profession Act, which prohibits a person, other than a member of the Law Society in good standing or a person listed in the exceptions, to engage in the practice of law, was constitutionally inoperative against persons acting in accordance with ss. 30 and 69(1) of the Immigration Act.

The Supreme Court of Canada found that the subject matter of ss. 30 and 69(1) of the former Immigration Act fell within Parliament's jurisdiction over naturalization and aliens pursuant to s. 91(25) of the Constitution Act, 1867. However, it also fell within the provincial jurisdiction over civil rights in the province; the provinces have legislative authority to regulate the practice of law under s. 92(13) of the Constitution Act, 1867 as part of their jurisdiction over professional regulation. Where the subject matter of the representation of aliens by counsel has federal and provincial aspects, the federal and provincial statutes and rules or regulations may coexist insofar as there is no conflict. However, where there is a conflict, the federal legislation will prevail according to the paramountcy doctrine.

Based on this analysis, the Supreme Court of Canada found that s. 26 of the Legal Profession Act was inoperative against non-lawyers who collected a fee acting under ss. 30 and 69(1) for the purposes of representation clients in federal immigration matters. In other words, despite the fact that Mangat was admittedly practicing law, the Law Society of British Columbia was powerless to regulate or otherwise discipline him.

Although the Supreme Court's decision made sense from a constitutional law perspective, it did little to protect foreign nationals from unscrupulous immigration consultants. Many immigration consultants possessed no formal legal training, carried no professional liability insurance, and were not required to follow any code of professional conduct.

The decision also did not authorize Canadian immigration consultants to practice law in areas other than Canadian immigration. For example, immigration consultants who practice U.S. immigration law within Canada are still engaged in the unauthorized practice of law notwithstanding the Mangat decision.

Regulation of Immigration Consultants

To provide protection for immigration and citizenship applicants, the Government of Canada examined ways to regulate immigration consultants. In October 2003, it established an independent non-profit organization called the Canadian Society of Immigration Consultants ("CSIC"), at a cost of $1.2 million, in order to establish self-regulation in the industry.

Unfortunately, CSIC was unable to effectively regulate and discipline immigration consultants in Canada. As a result, the Government of Canada replaced CSIC with the Immigration Consultants of Canada Regulatory Council ("ICCRC") on June 30, 2011. However, CSIC members could continue acting as representatives until October 28, 2011.

Current Statutory Framework

On June 30, 2011, Bill C-35 came into force. As a result of Bill C-35, a discussion of who may provide representation and advice in a Canadian immigration matter is now described in Section 91 of the Immigration and Refugee Protection Act ("IRPA"). According to Subsection 91(1), no person shall knowingly, directly or indirectly, represent or advise a person for consideration — or offer to do so — in connection with a proceeding or application under IRPA. However Subsection 91(2) states that a person does not contravene Subsection (1) if they are:

  1. A lawyer who is a member in good standing of a law society of a province or a notary who is a member in good standing of the Chambre des notaires du Québec;
  2. Any other member in good standing of a law society of a province or the Chambre des notaires du Québec, including a paralegal; or
  3. A member in good standing of a body designated under Subsection 91(5).
According to Subsection 91(5), the Minister may, by regulation, designate a body whose members in good standing may represent or advise a person for consideration — or offer to do so — in connection with a proceeding or application under IRPA. The Minister has now designated the ICCRC as the governing body for the regulation of immigration consultants; CSIC is no longer the governing body.

Paralegals are generally not permitted to act as representatives or to give advice in connection with a Canadian immigration case unless they are regulated by a provincial law society or perhaps if they are certified as immigration consultants by the ICCRC. At present, only the Province of Ontario regulates paralegals.

Lawyers licensed in other countries (such as the United States, the United Kingdom, India, etc.) are considered uncertified immigration consultants and may not act as legal representatives in Canadian immigration cases, unless they are also licenced in Canada or are members of the ICCRC.

Who Should you Choose?

At the risk of sounding biased, potential clients should usually retain a Canadian-licensed lawyer for their Canadian immigration case whenever possible. Although certain Canadian-licensed lawyers can be incompetent and unethical, the safeguards imposed by provincial law societies offer greater protection to immigration applicants.

ICCRC-certified immigration consultants may also be incompetent or unethical but the safeguards imposed by the ICCRC at least offer some protection to immigration applicants. In addition,they are legally permitted to act as authorized representatives in Canadian immigration cases. Therefore, ICCRC certified immigration consultants may be considered if a suitable immigration lawyer cannot be retained.

Paralegals who are regulated by the Law Society of Upper Canada (Ontario) are the only paralegals in Canada currently permitted to represent applicants in Canadian immigration cases. However, these regulated paralegals require no special immigration-specific training to become licenced. Nevertheless, the safeguards imposed by the Lsw Society of Upper Canada should offer some protection to immigration applicants. Therefore, they may be considered if a suitable immigration lawyer cannot be retained.

Under no circumstances should an uncertified immigration consultant be hired for a Canadian immigration case. These uncertified consultants act in violation of both Canadian federal law and provincial law. Anyone who retains an uncertified immigration consultant does so at his or her own risk.

Lawyers licensed in other countries (i.e. the United States, the United Kingdom, Mexico, India, etc.) who act in Canadian immigration cases are also considered unlicensed immigration consultants. They only way that a U.S. licensed lawyer will be permitted to act as an authorized representative in a Canadian immigration matter is if he or she is also a member of a provincial law society or a member of the ICCRC.
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