Arguing Incompetence of Counsel in an Appeal

Many lawyers when they meet with clients often find themselves reviewing rejected applications and/or hearings where it is obvious that an individual’s previous representative was incompetent.  The examples of incompetence range from missed deadlines to not understanding the law.  Some specific scenarios that clients have told me about include:

  • former counsel being told by an Immigration Appeal Division member to “sit down” because they were incompetent;
  • an immigration consultant not knowing the difference between a “conviction” and a “dismissal”;
  • an immigration consultant that the “Prevailing Wage = the wage paid to Canadians at the employer’s company”; and
  • a lawyer filing late because “deadlines are policy, not statute.”

The previous representative’s incompetence may serve as a ground for relief in a judicial review.  However, cases based on incompetence and/or negligence of previous counsel are exceptionally difficult cases.  The Federal Court’s March 7, 2014, Procedural Protocol on arguing incompetence of counsel only make these cases more challenging.   

The Law on Incompetence of Counsel

As the Supreme Court of Canada stated in R v. GDB for incompetence/negligence of previous counsel/representative to count as a ground for judicial review, it must be established that (1) previous counsel’s acts or omissions constituted incompetence and (2) that a miscarriage of justice resulted from the incompetence.

The Federal Court has closely followed the above two requirements when determining whether an alleged incompetence is a ground for review.  In the frequently cited case of Memari v Canada (Minister of Citizenship and Immigration), the Court stated that:

…the performance component must be exceptional and the miscarriage of justice component must be manifested in procedural unfairness, the reliability of the trial result having been compromised, or another readily apparent form.

In Galyas v. Canada (Citizenship and Immigration), Justice Russell stated that it is generally recognized that if an applicant wishes to establish a breach of fairness on this ground, he or she must:

a. Provide corroboration by giving notice to former counsel and providing them with an opportunity to respond;

b. Establish that former counsel’s act or omission constituted incompetence without the benefit and wisdom of hindsight; and

c. Establish that the outcome would have been different but for the incompetence.

In the often cited case of Shirwa v. Canada (Minister of Employment and Immigration), [1994] 2 FC 51, the Federal Court explained that there must be sufficient evidence to establish the “exact dimensions of the problem.”  Where the incompetence or negligence of an applicant’s representative is sufficiently specific and clearly supported by the evidence, such negligence or incompetence is inherently prejudicial to an applicant.  For example, in Kim v. Canada, 2012 FC 687, the Federal Court held that where an officer specifically refers to the lack of evidence, and where the submissions by a consultant are limited, then the failure to submit evidence causes a prejudice to the Applicants amounting to a miscarriage of justice.

Over time, as it began to become apparent that many allegations of previous counsel’s incompetence/negligence may have been factually inaccurate the Federal Court began to develop jurisprudence that current counsel could only argue incompetence/negligence of previous counsel/representative if there was evidence that either a complaint had been filed with the previous counsel’s/representative’s licensing body, or that the current counsel notified the previous counsel/representative of an intention to make an incompetence argument.  The March 7, 2014, Procedural Protocol affirms this jurisprudence, and makes it mandatory.

March 7, 2014 Procedural Protocol

The March 7, 2014, Procedural Protocol describes the procedure that counsel must follow where an applicant alleges professional incompetence, negligence, or other conduct against an applicant’s former legal counsel, or other authorized representative, which includes consultants, within the context of an application for leave and judicial review.

To paraphrase the Procedural Protocol (which I have embedded below), the procedure is:

  1. Prior to pleading incompetence, negligence or other conduct by the former counsel/representative as a grounds for relief, current counsel must satisfy him/herself, by means of personal investigations or inquiries, that there is some factual foundation for this allegation. In addition, current counsel must notify the former counsel/representative in writing with sufficient details of the allegations and advise that the matter will be pled in an application described above. The written notice must advise the former counsel/representative that they have seven days from receipt of the notice to respond, and include a copy of the Procedural Protocol.  In cases where privilege may be applicable, current counsel must provide the former counsel/representative with a signed authorization from the applicant releasing any privilege attached to the former representation.
  2. Current counsel should, unless there is urgency, wait for a written response from the former counsel/representative before filing and serving the application record. If the former counsel/representative intends to respond he or she must do so, in writing to current counsel, within seven days of receipt of the notice from current counsel.
  3. If after reviewing the response of the former counsel/representative, current counsel believes that there may be merit to the allegations, current counsel may file the application or appeal record. Any perfected application which raises allegations against the former counsel/representative must be served on the former counsel/representative and proof of service be provided to the Court.
  4.  Where  it becomes apparent that current counsel’s pursuit of this investigation may delay the perfection of the application record or appeal record beyond the timelines provided for by the Rules, then current counsel may apply by motion for an extension of time to perfect the record.
  5. If the former counsel or authorized representative wishes to respond to the allegations made in the record, he or she may do so in writing by sending a written response to current counsel and to counsel for the government within ten days of service of the application or appeal record or such further time as the Federal Court may direct.
  6. Current counsel who wishes to respond to the communication received from the former counsel/representative must file a motion for an extension of time and for leave to file further written submissions with respect to the new material received.
  7. If no response from the former counse /representative is received within ten days of service, and no extension of time has been granted, current counsel must advise the Court and the lawyers for the government that no further information from the former counsel/representative is being submitted and the Court shall base its decision without any further notification to the former counsel/representative.

While the Procedural Protocol adds several new mandatory steps to Applications for Leave to Commence Judicial Review involving allegations of incompetence/negligence, it also removes uncertainty involving such applications.  As well, if the Procedural Protocol results in the Federal Court removing the previously developing requirement that current counsel file a complaint with the previous counsel’s/representative’s licensing body, then there may actually be less steps, and time consumed, in these applications.

Addressing Ghost Consultants

For years, Canadian politicians have been grappling with the issue of how to end untrained and unregulated people from providing immigration advice, a practice commonly known as “ghost consulting.”  There appears to be a general consensus that tens of thousands of people each year are scammed by ghost consultants.  As well, even though they are not licensed, ghost consultants harm the reputation of the immigration consulting profession broadly.

The Government of Canada has launched numerous attempts at cracking down on ghost consultants, including, requiring licensing, creating the designated the Immigration Consultants of Canada Regulatory Council, and creating this video:

As well, in June, 2010, the previous Conservative Government of Canada stepped up Canada’s efforts to regulate immigration consultants by introducing Bill C-35, also known as the Cracking Down on Crooked Consultants Act.

Continue reading “Addressing Ghost Consultants”

IRCC Complaints About Immigration Consultants

In June 2017 I wrote an article for Policy Options about how I believed that while the existence of the immigration consultant profession in Canada promoted access to justice reforms were needed to strengthen the weeding out of some unethical behaviour.  One of the things that I recommended was that Immigration, Refugees and Citizenship Canada (“IRCC”) temporarily have the power to refuse to process applications submitted by people represented by consultants whom IRCC has previously determined to be unscrupulous, and that IRCC should also be allowed to levy fines against unscrupulous representatives in certain circumstances.

I recently received the results of an Access to Information Act request where the requester asked to see copies of all complaints sent by IRCC to provincial law societies and the Immigration Consultants of Canada Regulatory Council (the “ICCRC”), the body which regulates immigration consulants.  The results, which were over 13o pages, were astonishing for several reasons.

First, I have previously suspected despite general perception to the contrary that the number of complaints filed against immigration consultants was probably the same as against lawyers.  However, I seem to have been wrong. Based on the Access to Information Act results, it appears that IRCC has never filed a complaint about a lawyer to a provincial law society.  While it is possible that complaints against lawyers simply did not make their way into the Access to Information Act results, or that all of the complaints against lawyers were redacted, this seems unlikely, and at a minimum after reviewing the Access to Information Act results it is clear that the number of complaints that IRCC has made to the ICCRC about unscrupulous consultants dwarfs the number of complaints made about lawyers (which again appears to be none).

Second, the unethical behaviour that IRCC has encountered from unscrupulous representatives ranged from “what was that person thinking” to the truly disturbing.

Finally, the Access to Information Act results make it clear that IRCC is (or at least was previously as things may have changed since the release of the Access to Information Act results) frustrated with the ICCRC disciplinary process.  I know many upstanding immigration consultants who are exasperated with what some of their fellow less ethical colleagues appear to have gotten away with impunity.  These concerned professionals would not be comforted in learning how broken the complaints process between IRCC and the IRCC appears to be.

Examples of Complaints

Not all of the complaints that IRCC made to the ICCRC were related to particularly egregious conduct.  Indeed, some of the actions appear to simply be childish behaviour.  For example, as shown in the screen shots below, one instance involved an immigration consultant who submitted a request for a status update on the reconsideration request for a client whose permanent residence application was refused.

The visa office responded by stating that an immigration officer had reviewed the immigration consultant’s reconsideration request, and that the visa office was maintaining the refusal.

The immigration consultant responded by calling the visa officers assholes.

One can only wonder what was going through this person’s head.

Most of the other complaints that IRCC sent the ICCRC were for much more egregious behavior.  For example, in one case IRCC sent the ICCRC a complaint which contained allegations that an immigration consultant was conspiring with an educational institution to provide fake transcripts to international students who were not attending the school but needed proof of attendance to renew their study permits.  As IRCC’s complaint noted, this constitutes criminal behaviour (s. 127 of IRPA pertains to criminal misrepresentation).

In another case a consultant allegedly counselled his clients who wished to seek asylum in Canada to pretend that they were gay and to even “attend [a] gay pride parade in order to support their claims.”  The issue of the Refugee Protection Division (the “RPD”) occasionally requiring that LGBT claimants prove their sexual orientation is controversial.  The idea that an authorised representative has apparently been recommending that people fabricate their orientation is insulting to everyone who represents legitimate LGBT claimants.

Other examples of complaints that IRCC sent the ICCRC include situations where consultants:

  • advised privately sponsored refugee that he had to pay all resettlement costs;
  • encouraged clients to contact Members of Parliament on the basis that MPs can help expedite applications;
  • fabricated employer reference letters;
  • forged signatures;
  • counselled misrepresentation; and
  • advertised in a way to suggest that they had inside connections at IRCC.

In highlighting all of the above my point is not to disparage all immigration consultants. As I have said repeatedly, many, if not most, immigration consultants are upstanding and provide valuable advice to their clients.  Early on in my practice one of my mentor’s was a licensed consultant.  Rather, in reproducing and summarizing the complaints above my goal is to demonstrate that IRCC has been diligently referring complaints about unethical behaviour on the part of some immigration consultants to the ICCRC.

As well, it is of course necessary to note that all of the complaints that IRCC sent to the ICCRC are allegations.  However, most appear to have been well founded and were substantiated by documentary evidence.

Frustration with the Disciplinary Process

The Access to Information Act results also demonstrated a certain level of frustration amongst IRCC with the ICCRC disciplinary process.  When reading the disclosed documents I was astounded at how IRCC complaints were handled.  I really hope that there is more co-operation than what the Access to Information Act results revealed, or that things have changed, because if not, the current situation is simply depressing.

In almost every instance, the ICCRC Complaints Committee determined that it had decided not to refer an IRCC complaint about unscrupulous behaviour to the ICCRC Disciplinary Committee.  What was very interesting to read was that the letter that the ICCRC representative sent IRCC conveyed the impression that the author didn’t even realize that the complainant was the government.   The ICCRC even informed IRCC, a government agency, that if it wanted a refund for the consultant’s services that IRCC would have to pursue the matter in a local “small claims court.”

Given the ICCRC’s boiler plate responses which often did not seem to even acknowledge that the complainant was the government, it was not surprising then to see that in some of its complaints, IRCC expressed frustration with the ICCRC complaints referral process process.  For example, in one instance, IRCC sent a second complaint to the ICCRC about a particular immigration consultant and expressly stated that the ICCRC’s response to the matter had been insufficient.

In another example, IRCC essentially demanded an explanation for why no action had apparently been taken by the ICCRC against an immigration consultant who had an active arrest warrant for counselling misrepresentation and who had fled the country.

It is also apparent that in response to IRCC’s expressed dissatisfaction with the ICCRC disciplinary process that the ICCRC committed to changing its processes.  Indeed, as shown below, in May 2015 ICCRC legal counsel even met with IRCC to discuss the issue.  The ICCRC subsequently committed to changing how it handles complaints.

While it is possible that these changes have resulted in a more robust disciplinary mechanism, I am skeptical.  For one, many of the e-mails from the ICCRC to IRCC in which the ICCRC treated the government as if it were the client of an immigration consultant post-date the above letter.  As well, at the Standing Committee of Citizenship and Immigration an Assistant Deputy Minister with the Ministry of Immigration, Refugees and Citizenship Canada stated in May 2017 about the ICCRC that:

I don’t think we’re where we need to be yet. I think there are issues with the organization that can be strengthened in terms of its own internal governance, in terms of some of its issues around finance, and thirdly, I think, in terms of sometimes the effectiveness of its own enforcement processes. This includes ensuring timely enforcement that is appropriately calibrated to the nature of the infraction, and ensuring that there’s follow up in those areas.
I think it’s an organization that is, frankly, still finding its feet. It’s still fairly early days and it has made real progress, but, yes, there are areas where it can be strengthened.

I continue to believe that most immigration consultants play a valuable role in ensuring access to justice. I also think that it makes little sense to replace the ICCRC, which is only six years old, with a new regulatory body that has no experience.  However, until the ICCRC “finds its feet” (to quote the Assistant Deputy Minister) Canada’s immigration department should have the ability to sanction or refuse to process applications from consultants that it knows are unethical.  Such a temporary measure would ultimately be in the best interests of the ICCRC, the immigration consulting profession, and the integrity of Canada’s immigration system.

Weeding Out Crooked Immigration Consultants

The following is an article that I wrote for Policy Options.

The first paper that I wrote in law school was about legal ethics. I submitted a seven-page essay arguing that restricting the practice of law to graduates of law school was unethical, given the crisis of access to justice that so many face, and that the free market should instead regulate who can and cannot charge fees to provide legal representation. I got my lowest mark in law school.

The study and practice of law moderated many of my views, and my opinion on who should be able to practise law has been adjusted accordingly. It has become clear to me that those who receive fees in exchange for the provision of legal advice must be regulated, and that in an era of easy Internet marketing, paid-for reviews and fake news, the free market is incapable of performing this role. However, I still believe that access to the ability to practise law should be extended beyond those who have completed three years of law school.

It may not be surprising then that, unlike many immigration lawyers, I do not consider the existence of immigration consultants to be inherently problematic. When I started practising immigration law, a local immigration consultant was an important mentor to me, and some of the most passionate people I know who are advocating for greater justice and fairness in Canada’s immigration system are consultants.

Unfortunately, it is not possible to practise immigration law for long before encountering people who have been the victims of immigration consultants who provided extremely bad representation, ranging from sheer incompetence to fraud. In many other cases, the prospective immigrants were not victims of fraudulent consultants but willing participants in their schemes. What’s more, it is also apparent that many unscrupulous immigration consultants do not fear any consequences from their regulator and seemingly act with impunity.

I do empathize with their regulator, the Immigration Consultants of Canada Regulatory Council (ICCRC). In 2003, the Canadian Society of Immigration Consultants (CSIC) was established as the first independent governing body of the immigration consulting profession. In 2008, the House of Commons Standing Committee on Citizenship and Immigration determined that the CSIC was not providing adequate regulation, and in 2011 the CSIC was replaced by the ICCRC. Now, in June 2017, the same parliamentary committee has determined that the ICCRC is not doing a sufficient job of regulating consultants and protecting the public, and has again recommended that a new regulatory body be created. It is not difficult to envision this cycle repeating itself every five years.

The deficiencies of the ICCRC are constantly contrasted with the strengths of provincial law societies, which hardly seems fair given that most provincial law societies are over a hundred years old, while the ICCRC has existed for only six. Perhaps the best approach that the government could take to the regulation of immigration consultants is to allow the consultants’ regulatory body time to gain experience and mature.

However, until the immigration consulting profession demonstrates that it can be effectively self-regulated, the government must act to protect the public from unscrupulous and incompetent consultants. The people who would benefit most are the many hard-working immigration consultants who constantly see their profession’s reputation dragged through the mud.

The Royal Canadian Mounted Police and the Canada Border Services Agency are both responsible for investigating licensed immigration consultants who engage in fraud. A representative of the CBSA recently told the House of Commons Standing Committee on Citizenship and Immigration:

We have just over 200 criminal investigators across Canada who are responsible for investigating an array of crimes under IRPA [Immigration and Refugee Protection Act], as well as under the Customs Act. As a result, we use a tiered process with respect to issues that involve consultants. Generally, we go after individuals, or investigate individuals, who are the organizers of, let’s say, mass misrepresentation or mass fraud, rather than the one-offs. In terms of how we’re approaching this, we are looking at where the greatest deterrent could occur. We are looking at the big organizers, rather than the individual who may have provided information for profit in one case, and so forth. I do believe that we are using the resources that we have to the best of our ability, based on a risk profile.

It is understandable that the CBSA would want to pursue the most flagrant ethical breaches, such as the misdeeds of a Vancouver “ghost” (unlicensed) consultant who recently went to jail for eight years after putting fraudulent passport stamps in people’s passports. But the cumulative effect of the everyday misrepresentations — including, as recently reported by the CBC, consultants facilitating the illegal charging of fees by employers to employees for jobs — is just as great a threat to the integrity of Canada’s immigration system.

Criminal prosecutions require a high level of proof, and the criminal justice system has limited investigatory and prosecutorial resources. In any case, incompetent (as opposed to fraudulent) representation would not result in criminal charges. So, in seeking ways to protect the public, Immigration, Refugees and Citizenship Canada (IRCC) and the Immigration and Refugee Board (IRB) must look beyond the criminal justice system.

There are several other measures that IRCC and the IRB can take.

First, the government should amend the Immigration and Refugee Protection Regulations to provide IRCC with the power to temporarily refuse to process applications submitted by people represented by consultants whom IRCC has previously determined to be unscrupulous. Prospective immigrants should be advised that the processing of their applications will not continue until they retain new representatives. IRCC should also be allowed to charge fines. IRCC has already implemented both bans and fines to penalize employers who misrepresent themselves in applications to hire foreign workers. These have proven to be excellent deterrents, and the same principles and techniques could be utilized to deter fraud by consultants.

This is not to suggest that IRCC should become a permanent regulatory body for consultants, as some people have suggested. It is crucial that immigration consultants be able to be passionate advocates for their clients, including those accused by the government of being inadmissible to Canada and those who are clearly being deliberately blocked by the bureaucracy even though they are legally qualified to immigrate. If IRCC becomes both the visa adjudicator and the regulator of consultants, many consultants would likely be wary of aggressively challenging it. However, until immigration consultants fear crossing their regulator as much as lawyers fear breaching the rules of their respective law societies, the IRCC should have the ability to refuse to interact with known unscrupulous consultants.

Second, the IRB should be given the power to refuse to allow certain consultants to appear before it. An IRB official recently told the Standing Committee on Citizenship and Immigration:

Board members use a kind of compensatory mechanism in a hearing room. If they’re dealing with a consultant who is not able to present the client’s case, they get drawn into the arena and they have to start eliciting the evidence. It’s not something a lot of members like to do, but sometimes they feel they have to do that in order for the case to go ahead that day and for there not to be a miscarriage of justice.

This is a tremendous waste of scarce resources. The Immigration and Refugee Board should be able to simply refuse to allow incompetent consultants to represent clients before it. The IRB should work with the regulator to develop appropriate standards and testing that any consultants who wish to appear before it must pass.

Third, a significant obstacle to combatting fraud by consultants is that prospective immigrants who learn that they committed misrepresentation in an application because of poor advice fear lodging complaints against their representatives; they believe, often accurately, that they may be considered complicit in misrepresentation and could be removed from Canada or barred from entering. IRCC should allow such persons to correct their applications without fear of being barred from Canada for five years, which is the current penalty for any misrepresentation. While granting entry to someone who misstated a fact in an application may leave a bad taste in IRCC’s mouth, making progress against fraud by consultants should provide some satisfaction in compensation.

Finally, one of the principal reasons that people hire third-party representatives is language barriers. Most applicants in Canada’s economic-immigration programs must demonstrate a certain level of fluency in English or French, but this is not the case in Canada’s family reunification programs. People applying to immigrate under family reunification who do not speak either language are especially vulnerable to receiving bad advice, because they often do not understand the forms they must fill out. IRCC should provide as many of its forms as possible in the greatest number of languages possible. Any online forms should be able to connect to free translating services like Google Translate. When applicants can communicate with IRCC in their own language, unscrupulous consultants will be much less able to provide information on forms that does not reflect what their clients told them, and applicants will be less able to claim that they did not know what an immigration consultant wrote on their behalf.

In my experience, the majority of immigration consultants are ethical and provide very valuable services. It is they, frankly, who have been let down by both the government and their regulator. They deserve better, and well-considered actions are needed to remove the bad individuals who are ruining their profession’s reputation.

The ICCRC Disciplinary Process [Updated 13/09/14]

Two days ago I met with an individual who claimed to have received horrible treatment from two separate immigration consultants in Metro Vancouver.  The specific alleged deplorable actions included that:

  • Consultant A refused to give the individual her Visitor Record until she paid him $2,000.00.
  • Consultant A refused to provide her with a BC PNP refusal letter, and to this day has not provided a copy of the refusal letter.
  • Consultant B refused to submit a response to a BC PNP fairness letter without receiving a large payment that was not mentioned in the retainer agreement.
  • Consultant B refused to meet with her once the application was refused.

Both of these consultants are licensed consultants and members of the Immigration Consultants of Canada Regulatory Council (“ICCRC“).  I recommended that the individual file complaints against both consultants.  Unfortunately, my recommendation came with the caveat that to my knowledge the ICCRC has not once yet disciplined a single consultant against whom a complaint was filed.

Continue reading “The ICCRC Disciplinary Process [Updated 13/09/14]”

Saskatchewan’s Foreign Worker Recruitment and Immigration Services Act

As previously indicated in this blog post, the Government of Saskatchewan has taken an increasingly aggressive stance in combating immigration related abuses by consultants, recruiters, and employers.  The Government of Saskatchewan has faced difficulties in doing so (including pushback from the courts), however, because of the lack of a statutory framework.   It is therefore not surprising that on October 11, 2013, the Government of Saskatchewan proclaimed The Foreign Worker Recruitment and Immigration Services Act (the “Act“) and The Foreign Worker Recruitment and Immigration Services Regulations (the “Regulations“).

According to this news release by the Province of Saskatchewan, the Act and the Regulations will impact immigration consultants and employers of foreign workers as follows:

  • Require that immigration consultants be licensed and sign open and transparent contracts with employers and foreign nationals;
  • Require that employers of foreign nationals be registered;
  • Prohibit employers from charging or recovering recruitment fees from foreign nationals;
  • Prohibit unethical conduct against foreign nationals, such as withholding documents or other property, threatening deportation or providing misleading information;
  • Allow foreign workers and immigrants to seek compensation if they incur costs that are considered illegal under the Act; and
  • Allow fines to be levied of up to $50,000 for an individual and $100,000 for a corporation, and up to one year imprisonment, for those violating the Act.

The Act and the Regulations will also change the way that employment recruiters conduct business.  However, those changes are beyond the scope of this post.

Require That Immigration Consultants be Licensed

In addition to existing federal regulations requiring that immigration consultants be members of the Immigration Consultants of Canada Regulatory Council, the Act will also require that immigration consultants doing business in Saskatchewan obtain licenses from the Province of Saskatchewan.  A license will only be issued if the Government of Saskatchewan is satisfied that the immigration consultant has complied with, and will continue to comply with, the  Act and Regulations.

The Act stipulates that some immigration consultants will have to file security with the Province of Saskatchewan in order to obtain a license.  Section 7(1) of the Act states that:

7(1) If the director considers it necessary and in the public interest to do so, the director may require

(a) an applicant to file financial security with the director as part of the applicant’s application;

(b) a licensee whose licence has been suspended to file financial security with the director before the licence is reinstated; or

(c) subject to section 48, a licensee to file financial security with the director at any time during the term of a licence.

(2) No person required to file financial security with the director pursuant to this section shall fail at any time to maintain that financial security.

(3) Financial security filed pursuant to this section:

(a) must be in the amount and in the form that the director considers appropriate; and

(b) may be forfeited in the prescribed manner.

Section 46 of the Act and section 5 of the Regulations together provide that the consultant’s financial security will be forfeited if an immigration consultant does not comply with an order by the Province of Saskatchewan to compensate a foreign national harmed by the immigration consultant’s in breach of the Act and Regulations.

There are significant consequences for immigration consultants who do not obtain licenses from the Province of Saskatchewan.  Section 45 of the Act provides that immigration consultants without licenses cannot enforce contracts and retainer agreements.

Legal disability
45 Any person who does not have a licence or a certificate of registration issued pursuant to this Act is not capable of commencing or maintaining any action or other proceeding in any court in Saskatchewan with respect to a contract made for immigration services or recruitment services in whole or in part within Saskatchewan, or against any person resident in Saskatchewan, in the course of or in connection with any immigration services or recruitment services.

As well, immigration consultants who do not obtain licenses will have committed an offence under the Saskatchewan Act, which, as elaborated on below, can result in significant penalties, including imprisonment.

It is important to note that lawyers are exempt from the above licensing requirements.  This is perhaps not surprising as the following requirement of the Act would surely be a breach of solicitor client confidentiality:

Record requirements

8(1) For the purposes of clause 31(1)(b) of the Act, every licensee and former licensee shall prepare and retain the following records:

(a) the name, occupation, residential address, rate of wages, telephone number, postal address and email address, if any, of every foreign national who is recruited;

(b) the name, telephone number, postal address and email address, if any, of every foreign national who receives immigration services;

(c) the name, telephone number, business address and email address, if any, of every employer for whom the licensee or former licensee has provided recruitment services;

(d) any contract that the licensee or former licensee has entered into with a foreign national or an employer for the purpose of providing recruitment services or immigration services;

(e) any expenses incurred by the licensee or former licensee in recruiting foreign nationals or providing foreign nationals with immigration services;

(f) the amount of money, if any, paid to the licensee or former licensee by an employer of the foreign national, the date of the payment and the reason for the payment;

(g) the amount of money, if any, paid to the licensee or former licensee by a foreign national, the date of the payment and the reason for the payment;

(h) copies of all applications to government agencies respecting:

(i) a foreign national seeking to enter Canada for the purpose of residing in or visiting Saskatchewan; or

(ii) an employer seeking to hire a foreign worker;

(i) copies of all decisions received from government agencies with respect to the applications mentioned in clause (h);

(j) copies of all correspondence sent to or received from a person respecting recruitment or immigration services provided by the licensee or former licensee.

Immigration consultants will be required to make the above documents available to the Government of Saskatchewan upon request.   The Act also contains rather expansive investigative powers, including the ability to enter commercial premises.  This would be a clear breach of solicitor-client privilege, and I presume it is part of the reason why lawyers are exempt from this licensing requirement.

Require that Employers be Registered

The media is interpreting the Act as requiring that all employers of foreign workers in Saskatchewan obtain registration certificates from the Province of Saskatchewan.  However, the exemption are numerous.  Section 6 of the Regulations states:

6(1) For the purposes of [mandatory employer registration, the requirement] of the Act does not apply with respect to employers who hire employees in any of the following classes:

(a) foreign nationals who are on open work permits;

(b) subject to subsection (2), foreign nationals in immigration classes that, pursuant to the Immigration and Refugee Protection Act (Canada) and the regulations made pursuant to that Act, are exempt from the requirement:

(i) to apply for a work permit; or

(ii) to obtain a labour market opinion from the Department of Employment and Social Development of the Government of Canada.

(2) Clause (1)(b) does not apply to a foreign national in any of the following occupational classes:

(a) an occupation that is exempt from the requirement to obtain a labour market opinion because there is an international agreement mentioned in clause 204(a) of the Immigration and Refugee Protection Regulations (Canada), being SOR/2002-227, that governs the work to be performed;

(b) clergy.

(3) For the purposes of [mandatory employer registration], during the period commencing on the day on which these regulations come into force and ending on the day that is two years after that day, [the registration requirement] of the Act does not apply to an employer who, on the day on which these regulations come into force, is registered with the Saskatchewan Immigrant Nominee Program.

It is not clear why employers of foreign nationals who are working under international trade agreements are required to register, while employers of foreign workers under significant benefit work permits are not.  Why does an employer of a NAFTA Intra-Company Transferee have to register with the Province of Saskatchewan, while an employer of a general Intra-Company Transferee does not?

Prohibit employers from charging or recovering recruitment fees from foreign nationals

Section 23 of the Act states:

23(1) Subject to subsection (2), no person shall, directly or indirectly, charge any person other than an employer a fee or expense for recruitment services.

(2) Subsection (1) does not apply with respect to any settlement services provided pursuant to a contract for immigration services.

(3) The term of any contract that requires the payment by any person other than an employer of fees or expenses mentioned in subsection (1) is void and any fee or expense paid may be recovered by the person who paid the fees or expenses in any manner authorized by law.

The Act does not appear to prohibit charging employees for completing Labour Market Opinion applications.  It is actually silent on whether assisting employers with such an application constitutes “immigration services” or “recruitment services,” however, the consensus amongst representatives has traditionally been that it is an “immigration service.” In any event, considering that the Ministry of Economic and Skills Development has taken the position that authorized representatives cannot charge employees for their employers’ Labour Market Opinion applications, I know of very few representatives who continue to do so.

Prohibit Unethical Conduct Against Foreign Nationals


Section 22 of the  Act defines the prohibited contact as follows:

Prohibited practices
22 No foreign worker recruiter, employer or immigration consultant shall:

(a) produce or distribute false or misleading information;

(b) take possession of or retain a foreign national’s passport or other official documents or property;

(c) misrepresent employment opportunities, including misrepresentations respecting position, duties, length of employment, wages and benefits or other terms of employment;

(d) threaten deportation or other action for which there is no lawful cause;

(e) contact a foreign national or a foreign national’s family or friends after being requested not to do so by the foreign national;

(f) take action against or threaten to take action against a person for participating in an investigation or proceeding by any government or law enforcement agency or for making a complaint to any government or law enforcement agency; or

(g) take unfair advantage of a foreign national’s trust or exploit a foreign national’s fear or lack of experience or knowledge.

As well, if a contract for immigration services services is unclear, ambiguous or incomplete with respect to the above requirements, the interpretation least favourable to the immigration consultant prevails.  While most of the above requirements are obvious, and are more or less already prohibited in federal legislation, codes of conduct, and tort, the inclusion of these requirements in the Act provide the Province of Saskatchewan with specific regulatory ability to penalize individuals in breach. 

Seeking Compensation

This one is very straight forward.  Subject to procedural fairness requirements outlined in s. 48 of the Act, the Province of Saskatchewan may order that an employer or an immigration consultant compensate foreign nationals if suffered a loss resulting from an employer’s or a consultant’s breach of the Act and/or Regulations.

Allow Fines and Imprisonment

Section 40 of the Act states:
40(1) No person shall:
(a) fail to provide any notice or other document that the person is required to provide pursuant to this Act;


(b) fail to complete any information required on any notice or other document or fail to provide any information required pursuant to this Act;


(c) make or sign any false statement or furnish any false, misleading or inaccurate information to the director, to the minister or to any employee of the ministry with respect to any matter or thing with respect to which information is required pursuant to this Act;


(d) omit to state a fact that is required to be stated or that is necessary to make a statement not misleading in light of the circumstances in which it was made to the director or any employee of the ministry;


(e) destroy, mutilate, alter or fail to retain any records required to be retained pursuant to this Act;


(f) fail to produce any records required to be retained pursuant to this Act to a person entitled to inspect, examine or audit the records;


(g) fail to provide all reasonable assistance when required to do so for the purposes of aiding in the conduct of an inquiry, inspection, examination or audit;


(h) unlawfully obstruct or interfere with the director or any person authorized by the director while making an inquiry, inspection, examination or audit or carrying out duties pursuant to this Act or pursuant to a warrant issued pursuant to section 37; or


(i) fail to comply with any provision of this Act.


The maximum penalties to an individual for breaching the Act are a fine of not more than $50,000 and/or imprisonment of not more than a year.


What strikes me most about the Saskatchewan Act and its Regulations is what it shows about the Province of Saskatchewan’s lack of faith in the ability of the ICCRC to regulates its membership.  The ICCRC already prohibits most (if not all) of the unethical behaviour that the Act and the Regulations does.

That the Province of Saskatchewan is now requiring immigration consultants to register and obtain provincial licenses (a requirement which will likely be constitutionally challenged on jurisdictional issues) reveals a lack of confidence in the ICCRC.  I have to say… in researching this blog post I was surprised at how opaque the ICCRC’s disciplinary process is.  I cannot find on the ICCRC website a page which shows the names of consultants who have received negative citations resulting from complaints.  All I could find on the ICCRC website is a link to this PDF, which seems to be a public relations piece that suggests that there was not a single complaint against an ICCRC member during the period of June 30, 2012, to January 31, 2013 that resulted in a negative citation against an immigration consultant.

Compare that to the Law Society of British Columbia (“LSBC”) website, which publicly names every British Columbia lawyer who has received a negative citation from the LSBC.  This page even lists current hearings that are ongoing.  The LSBC is incredibly transparent, and any member of the public can see that the LSBC takes it regulatory and disciplinary roles very seriously.

Unlike many immigration lawyers, I believe that immigration consultants serve a useful (if not necessary) role in helping people immigrate to Canada.  However, there is clearly an emerging lack of confidence in the ability of their regulatory body to “police” its members.  The ICCRC must credibility tackle this perception, before more provinces follow Saskatchewan’s lead.

The “Innocent Mistake” Defence to Misrepresentation

On October 12, 2011, I wrote about how the Federal Court in Osisanwo had certified the following question:

Is a foreign national inadmissible for misrepresenting a material fact if at the time of filing his/her application for permanent residence or at the time of granting permanent residence he/she had no knowledge of the material fact that constituted such misrepresentation?


Ultimately, the Respondent in Osisanwo did not litigate to the Federal Court of Appeal.  However, on April 13, 2012,  the Federal Court issued several judgements in misrepresentation cases that establish a clear rule regarding whether innocent mistake is a defence to s. 40 misrepresentation allegations.  In essence, without explicitly stating so, the Court described misrepresentation as a strict liability offence, in which there is a “reasonableness” (or “due diligence”) defence.

An Overview of the Rule

Madam Justice Tremblay-Lamer, the author of the aforementioned string of decisions,  found that misrepresentation does not always require subjective knowledge.  In clarifying this, she first cited the following passage from Jiang v Canada(Minister of Citizenship and Immigration):

With respect to inadmissibility based on misrepresentation, this Court has already given section 40 a broad and robust interpretation. In Khan, above, Justice O’Keefe held that the wording of the Act must be respected and section 40 should be given the broad interpretation that its wording demands. He went on to hold that section 40 applies where an applicant adopts a misrepresentation but then clarifies it prior to a decision. In Wang v Canada (Minister of Citizenship and Immigration), 2005 FC 1059, this Court held that section 40 applies to an applicant where the misrepresentation was made by another party to the application and the applicant had no knowledge of it. The Court stated that an initial reading of section 40 would not support this interpretation but that the section should be interpreted in this manner to prevent an absurd result.

She then further cited Baro v Canada (Minister of Citizenship and Immigration), where the Court held that:

Even an innocent failure to provide material information can result in a finding of inadmissibility; for example, an applicant who fails to include all of her children in her application may be inadmissible: Bickin v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No.1495 (F.C.T.D.) (QL). An exception arises where applicants can show that they honestly and reasonably believed that they were not withholding material information.

Accordingly, Madam Justice Tremblay-Lamer held that it is only in exceptional cases where an applicant can demonstrate (1) that he honestly and reasonably believed that he was not withholding material information, and (2) where “the knowledge of which was beyond his control”, that the applicant may be able to take advantage of a “reasonably innocent mistake” defence to misrepresentation.

And of course, simply trusting a representative is not due diligence.