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

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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