Arguing Incompetence of Counsel in an Appeal

21st Mar 2014 Comments Off on Arguing Incompetence of Counsel in an Appeal

Last updated on September 24th, 2020

Last Updated on September 24, 2020 by Steven Meurrens

Many lawyers when they meet with clients often review rejected applications and/or appeals where it is obvious that the individual’s previous representative was incompetent.  The examples of incompetence range from missed deadlines to ignorance of the law.  Some specific examples 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 stating 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.”

While the previous representative’s incompetence may serve as a ground for relief in a judicial review,  cases based on incompetence and/or negligence of previous counsel are exceptionally difficult.  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 Federal Court stated that:

…the performance component must be exceptional and the miscarriage of justice component must be manifested in procedural unfairness,

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Implied Status – What It is, and What Changed Recently

7th Mar 2014 Comments Off on Implied Status – What It is, and What Changed Recently

Last updated on April 16th, 2020

Last Updated on April 16, 2020 by Steven Meurrens

Implied status is perhaps one of the most misunderstood concepts of Canada’s immigration system.  Many mistakenly question its legality.  Others fail to appreciate its unique requirements, and abruptly find themselves without status.   Recent procedural changes and court decisions in Canada have only added to the confusion.

Implied Status

Regulations 183(5), 186(u), and 189 of the Immigration and Refugee Protection Regulations (“IRPR”) provide the legal basis for implied status.  In brief, if a foreign worker, international student, or visitor files an application to extend his (or her) status in Canada, then he may remain in Canada on the terms of his original status until Immigration, Refugees and Citizenship Canada (“IRCC”) makes a decision on his extension application.

Accordingly, a foreign worker can continue to work, an international student can continue to study, and a visitor can continue to reside in Canada during IRCC’s processing of the extension application.  Considering that as of writing visitor, worker, and student extension applications took IRCC 75, 60, and 42 days respectively to process, the extra time that implied status can allow an individual to carry on with his life in Canada can be significant.

In order to take advantage of implied status, the IRPR requires that an applicant file the extension application before his current immigration document expires.  Even submitting an extension application one day too late will mean that a foreign national cannot benefit from implied status.  The consequences of this are often quite serious.

As well, an applicant will lose the benefits of implied status if he leaves Canada while IRCC processes his extension application.

Examples

The following exchange between an Immigration Representative and the Immigration Representative Portal is an example of how implied status works.

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Questions & Answers – Student Work Experience and CEC (IR-10)

1st Mar 2014 Comments Off on Questions & Answers – Student Work Experience and CEC (IR-10)

Last Updated on March 1, 2014 by Steven Meurrens

The Canadian Experience Class (“CEC”) allows individuals with one-year skilled work experience in Canada to acquire permanent residency.  In November 2013, the Government of Canada through Ministerial Instructions introduced significant limitations to the program.  We sent a newsletter to our subscribers outlining the changes to the CEC, and  I have reproduced on my blog a copy of that newsletter article.  As well, in December 2013 The Canadian Immigrant Magazine published an article of mine in which I outlined alternate programs for people who became ineligible to apply to the CEC.

In a previous blog post, I also reproduced an Access to Information Act result in which Citizenship and Immigration Canada confirmed to an immigration representative that work experience for a foreign employer counts towards the CEC’s work experience requirement.

In today’s post I will be reproducing a similar Q&A between an immigration representative and Citizenship and Immigration Canada regarding whether work experience obtained during full-time studies counts towards the CEC’s work experience requirement.  I will also be reproducing part of Citizenship and Immigration Canada’s Overseas Processing Manual 25A – Canadian Experience Class (“OP25A”), which discusses the issue.

Full-Time Study, Summer Breaks, and the Canadian Experience Class

Section 87.1(3)(a) of the Immigration and Refugee Protection Regulations  provides that:

any period of employment during which the foreign national was engaged in full-time study shall not be included in calculating a period of work experience [for the CEC]

It is clear that work experience obtained during full-time study will not count towards the CEC work experience requirement.  It is therefore apparent that work obtained on an off-campus work permit or a co-op work permit would not count towards the CEC.  

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