Canada Immigration | How to Choose a Canadian Legal Representative

Canada Immigration: How to Choose a Legal Representative

(What Your Own Representative Doesn't Want You to Know)

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. For this reason, it is important to understand the regulatory framework that governs the use of legal representatives in Canadian immigration cases. A detailed discussion of this framework appears below.

Current Regulations

According to Section 2 of the Canadian Immigration and Refugee Protection Regulations ("IRPR") (SOR/2002-227), the term "authorized representative" means a member in good standing of a bar of a province, the Chambre des notaires du Québec or the Canadian Society of Immigration Consultants ("CSIC"). In other words, only a lawyer who is admitted to practice law in one of the Canadian provinces or an immigration consultant who is a member of CSIC may represent a client in a Canadian immigration matter.

Canadian-licensed lawyers are clearly authorized to represent clients in Canadian immigration matters. Uncertified immigration consultants who are not members of CSIC act in violation of both federal and provincial laws. Paralegals are also considered uncertified immigration consultants; even in Ontario where they are regulated, paralegals who represent clients in Canadian immigration cases do so in violation of federal law (and likely provincial law as well) if they are not also certified by CSIC. In addition, 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.

The 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 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.

Psuedo-Regulation of Immigration Consultants

To provide protection for immigration and citizenship applicants, the Canadian federal government examined ways to regulate immigration consultants. In October 2003, the federal government established an independent non-profit organization called CSIC, at a cost of $1.2 million, in order to establish self-regulation in the industry. Membership in CSIC is restricted to Canadian citizens and permanent residents.

As of April 2004, only immigration consultants who are members of CSIC are recognized as legal representatives in Canadian immigration matters. Therefore, immigration consultants who practice Canadian immigration law without being members of CSIC act in violation of the IRPR and are not protected by the Mangat decision. As a result, they are engaged in the unauthorized practice of law and are subject to prosecution by provincial law societies.

CSIC's website claims that certified consultants are equipped with the latest information on immigration law, procedures and practices and go about their business according to a strict, enforceable Code of Conduct. It states that, to become certified, consultants must pass a rigorous application process, which requires evidence of good character, and tests knowledge and language skills. CSIC's website also states that certified consultants are fully insured for errors and omissions and can be subject to complaints that are all duly investigated by CSIC. CSIC's claims sound good but, upon closer inspection, it will become apparent that CSIC certification does not provide the same level of security to clients as membership in a provincial law society.

Provincial law societies require candidates to possess a Canadian law degree (or the foreign equivalent). They must also article (i.e. clerk) with a Canadian law firm for a prescribed period. In addition, candidates must write and pass the relevant law society's Bar admission exam before being admitted as a member of the Bar. Finally, lawyers must maintain substantial professional liability insurance in order to practice law.

Although CSIC imposes membership requirements that loosely parallel those of a provincial law society. However, these requirements fall short in several areas, the most signicant of which are as follows:

Since April 13, 2006, only graduates from accredited immigation certificate programs have been eligible to apply for membership in CSIC. However, these programs confer post-secondary certificates; they are not university degree programs. More importantly, any immigration consultant who joined CSIC prior to April 13, 2006 is completely exempt from the requirement of having any formal education.

Although CSIC provides professional liability insurance to its members, the minimum insurance coverage mandated by CSIC is far below what is required of lawyers in Canada. Therefore, while CSIC's insurance requirement offers some protection to its members' clients, the insurance coverage is not considered equivalent to those of a provincial law society.

CSIC's ability to discipine its members has also been called into question. According to information obtained by the Toronto Star in 2007, CSIC received a total of 209 complaints against its members from November 1, 2005 to October 31, 2006. Of this number, only 6% of these complaints were considered resolved. Further, since 2004, CSIC has not held a single disciplinary hearing against one of its members.

Notwithstanding the shortcomings of CSIC, certified immigration consultants are a significant improvement over the thousands of uncertified "ghost" consultants that operate illegally in Canada and abroad. In 2007, the Toronto Star published "Lost in Migration," a series of articles on immigration consultants in Canada. This series is available online at the Toronto Star website; PDF copies of Part 1, Part 2, and Part 3 of Lost in Migration are also available at our firms' website.

According to the Toronto Star, there were 1,068 CSIC members as of June 13, 2007. However, there are an estimated 6,000 immigration consultants operating in Canada (approximately 4,932 unregistered immigration consultants). This does not even take into account the thousands of unregistered immigration consultants operating in other countries. These consultants operate illegally, do not possess any formal training, carry no professional liability insurance, and often lie to their clients and/or counsel them to commit immigration fraud before vanishing.

Conclusion

For the reasons stated above, potential clients should retain a Canadian-licensed lawyer for their Canadian immigration case whenever possible. Although Canadian-licensed lawyers can also be incompetent and unethical, the safeguards imposed by provincial law societies offer greater protection to immigration applicants.

Although the safeguards imposed by CSIC certification are not equivalent to those imposed on lawyers, they offer some level of protection to immigration applicants. Therefore, CSIC certified immigration consultants may be considered as a second choice. As in the case of Canadian-licensed lawyers, CSIC certified immigration consultants may also be incompetent or unethical but the safeguards imposed by CSIC at least offer some protection to immigration applicants. In addition, CSIC certified immigration consultants are legally permitted to act as authorized representatives in Canadian immigration cases.

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, since they do not fall under the definition of "authorized representative," which appears in Section 2 of the IRPR. 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 CSIC.