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).Read more ›
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.Read more ›
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.Read more ›
Last updated on September 24th, 2020
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,Read more ›
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,Read more ›
Last updated on December 11th, 2019
Canadian immigration law provides that a person who makes an application must answer truthfully all questions put to them for the purpose of the examination. Every visa applicant has a duty of candour to provide complete, honest and truthful information when applying for entry to Canada. Any misrepresentation, whether direct or indirect, that either induces, or could induce, an error by a visa officer in the performance of his or her duties, can result in a person being barred from Canada for five years.
Misrepresentation can occur without an applicant’s knowledge.
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.
In Baro v Canada (Minister of Citizenship and Immigration), the Court further held that:
Even an innocent failure to provide material information can result in a finding of inadmissibility;Read more ›
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.
Read more ›