Procedural Fairness Owed by Provincial Nomination Programs to “Fraudulent” Consultants

The Saskatchewan Queen’s Bench (the “Court“) in Kaberwal v. Saskatchewan (Economy), 2013 SKQB 244 has released a decision clarifying the procedural fairness owed by provincial nomination programs to immigration representatives accused of fraud.  To the best of my knowledge, it is the first decision on this issue.

The Facts of the Case

On December 31, 2012, Saskatchewan’s Ministry of Economy, Immigration Services (the “Ministry“) suspended an immigration consultant’s (the “Consultant“) right to submit applications to the Saskatchewan Immigration Nominee Program (“SINP“) for a period of two years.  SINP officials accused the Consultant of fabricating job offers for employers who informed SINP that they never saw or signed the job offers that the Consultant submitted to SINP without their knowledge.

The Ministry sent the Consultant a letter which, amongst other things, stated the following:

We have reviewed seven job offers from Saskarc Industries that you submitted on behalf of seven applicants that have you listed as the third party representative. Part of the review of the application includes verifying the validity of the documents and information included in the application. As a representative, you have signed and agreed to the Saskatchewan Immigrant Nominee Program (SINP)’s Code of Conduct for Representatives which states that you will provide truthful, accurate and complete information to the SINP and that you will be personally accountable to the SINP for all aspects of the application.

Our view of job offers from Saskarc Industries Inc. included contacting the company to confirm their validity. Our conversations with Saskarc revealed that they did not issue these seven job offers and they are not written in their standard format. Furthermore, they have indicated that these job offers are fraudulent.

….

We would like to give you an opportunity to respond to this information. We will afford you 30 days from the date of this letter to make any representations in this regard and to provide any reliable and verifiable evidence that you did not provide fraudulent information to the SINP. If it is determined that you have submitted fraudulent information to the SINP, you will be unable to act as a representative of any person(s) wishing to access our programs and services, including the SINP, for a period to be determined by myself. Additionally, all applications that are currently in process that list you as a third party representative will be returned and those that have been nominated will be reviewed to ensure that all information submitted is bona fide.

The Consultant, who did not retain counsel, responded, stating that:

I am writing in response to your letter dated August 2012 regarding the employer SASKARC INDUSTRIES INC.

Carl was HR of Saskarc Industries a year ago and he signed the offer for Welders and Fitters and at that time he was looking for 7-8 welders fitters and after that I didn’t contacted (sic) the company as we submitted the files and we are waiting for any reply from SINP office. And in second week of August 2012 I called the company to get an update and to find out if offers were still valid than (sic) I came to know that Roberta is HR of the company. Then I talked to Roberta and explained everything about the offers signed by Carl and I adviced (sic) her to do online registration and she did online registration as well.

Then on August 19th I left for India and when I came back I got this letter from your office. When I contacted Roberta she explained (sic) me that she was not aware of offers given by Carl and she signed 12 more offer (sic) and out of 3 or 4 already got nominations.

..

The format of offer letters was different because we always used this format for all files submitted by our office to SINP, which Carl had signed and the offer given by Roberta might have different format.

On December 31, the Ministry informed the Consultant that SINP was prohibiting the Consultant from submitting applications for two years.  The Ministry wrote:

Thank you for responding to the letter sent to you by the Program Integrity Unit (PIU) dated August 14, 2012. The letter was issued in order to give you the opportunity to respond to PIU findings that seven job offers from Saskarc Industries that you submitted on behalf of seven applicants that have been found to be fraudulent.

The PIU has confirmed with Saskarc Industries that while they did have a signed agreement with you, they did not sign these job offers and that they are fraudulent. Furthermore, they have indicated that all job offers issued by their office are on letterhead.

Based on this information the PIU has determined that you knowingly submitted fraudulent job offers to SINP. As a result of the foregoing, we will not accept any applications for any other programs and services, including the SINP, where you are indicted (sic) as the representative for a period of two years from the date of this letter.

SINP then informed the Consultant that applications in which she was the representative that SINP was currently processing would be returned to the prospective nominees with a letter informing the individuals that SINP was no longer accepting applications filed on their behalf by the Consultant.

No oral or in-person hearing was conducted by the Ministry.

The Consultant testified that the Ministry’s decision cost her 70% of her business.

Did the Ministry breach the duty of procedural fairness owed to Kaberwal by failing to hold an oral hearing before making its decision?

The Consultant argued that the Ministry had an obligation to hold an oral hearing before rendering its decision and in failing to do so breached the duty of fairness owed to her.  The Ministry argues that the Consultant was not entitled to an oral hearing.

The Court confirmed that the audi alterum partem principle, which requires a decision maker to provide adequate opportunity for those affected by a decision to present their case and respond to the case against them, does not confer an unqualified right to an oral hearing unless otherwise stipulated by statute.  Rather, what is required is that parties be given the opportunity to put forward their arguments.  Furthermore, unless otherwise prescribed by statute, the content of input rights (i.e. written submissions vs. oral hearing) is at the discretion of the decision-maker subject to the supervisory role of the court to review the propriety of that choice.

Citing Baker v. Canada, the Court noted that the factors relevant to the scope of participatory rights include:

1) the nature of the decision being made and the process followed in making it;

2) the nature of the statutory scheme;

3) the importance of the decision to the individual affected;

4) the legitimate expectation of the person challenging the decision in relation to the procedure to be followed, and

5) the choice of procedure made by the agency itself and institutional constraints particularly where the statute limits the decision-making ability to chose its own procedures.

The Nature of the Decision

The Court found that generally where the credibility of witnesses is considered relevant, its importance to the process often weighs in favour of holding an oral hearing.  If a tribunal’s decision may turn on findings of fact made from conflicting evidence or on the credibility of witnesses, there may be a right to an oral hearing and cross-examination of those witnesses. Where only the credibility of the individual affected is in issue, that party should be heard orally, even though the rest of the hearing may be conducted in writing.  If none of the important facts are in dispute and there is no “accuser” to be questioned, an oral hearing may not be necessary. If there is sufficient evidence on which to make a decision, other than the evidence on which credibility is an issue, an oral hearing is not necessary.

In this case, the Court held that the allegation of fraud was a serious matter based on credibility, that it is generally considered difficult to prove, and that this favored an oral hearing.

The Statutory Scheme

As noted by Court, SINP has no statutory basis and its officials do not exercise any statutory authority.  Its processes, forms, guidelines, criteria, requirements, evaluation and decision making, etc., are all created and governed by broad based ministerial policy.  As such, there is no statutory scheme applicable to SINP and thus no statutory appeal or other safeguarding processes open to the Consultant. The decision rendered was final and decisive, and this favored the granting of an oral hearing.

The Importance of the Decision

There was no question about the importance of the decision to the Consultant.  She lost 70% of her business, and her reputation was ruined.  In the legal and consulting industry, a poor reputation undermines both present and future relationships, referrals and business interests.

Legitimate Expectations

In the absence of a statutory scheme, the Court found that it was unclear what process the Consultant expected the Ministry to follow. There appeared to be no known track record for how a Provincial Nomination Program would conduct an investigation, receive, assess and weigh information provided by those affected, or how to resolve discrepancies of evidence.

Limitations Imposed by Statute

The Court reiterated that despite there being no statutory scheme governing investigations, third party allegations, degree of participatory input and ultimate decision making for the Ministry, the Ministry consciously choose to follow the written submission format without any direct in-person meetings.  There was no suggestion the Ministry possessed any particular expertise in developing its choice of process.

Result

The Court stated:

Balancing the aforementioned factors, [the Consultant] should have been given an in-person hearing. It is unnecessary for the format of the actual hearing to conform to the traditional trappings of the judicial process so long as [the Consultant] had a meaningful opportunity to challenge the evidence and credibility of Carl Hodgson and Roberta Taylor, and a meaningful opportunity to respond.  It was equally important for Kaberwal to have been informed of the precise evidence relied upon by the Ministry in making its findings of fraud.

Interestingly, the Court also found that it could not order SINP to issue a retraction letter to the Consultant’s clients.


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