By Lynn Gaudet, RCIC and Camilla Jones RCIC
In other fields of law, non-lawyers who provide legal services are called paralegals. In the field of immigration law, non-lawyers who provide legal services are called immigration consultants.
Immigration consultants must be distinguished from law clerks who also provide legal services, but who are employed and supervised by lawyers.
This paper is a history of the Regulation of Immigration Consultants in Canada.
PART I – How it all started
Federal Jurisdiction: Law Society of British Columbia V. Mangat
The Supreme Court of Canada in the case of the Law Society of British Columbia v. Mangat,  3 S.C.R. 113 determined that the Federal Government and not the provincial government had the jurisdiction to regulate immigration consultants. The Mangat case arose when the Law Society of British Columbia claimed that only lawyers could legally provide paid immigration services.
Mr. Mangat, at that time an immigration consultant, was charged with the provincial offence of conducting an unauthorized legal practice, because he was not a lawyer yet he provided immigration services to clients for a fee.
The services provided by Mr. Mangat included appearing on behalf of clients at the Immigration and Refugee Board (IRB), drafting immigration applications for clients and advise clients about immigration law. There was no evidence that the services he provided were below the standard that would have been provided by a lawyer.
The Supreme Court decided that because immigration was a federal matter according to the Constitution Act 1867, it was the responsibility of the federal government, not British Columbia, to decide who may practice immigration law. The court found that the provincial statute governing the practice of law in British Columbia did not apply to the practice of immigration law.
The Immigration Act which was in force at the time, (Immigration Act 1978) permitted representation by a barrister, solicitor or other counsel. This was broad enough to allow non lawyers to act on behalf of clients on immigration matters. There were no restrictions on how immigration law was practiced by non-lawyers. Anyone could open up a business and call themselves “immigration consultant”. This total lack of regulation led to many instances of incompetence and fraud.
The Mangat case clarified that it was the federal government that had the power to restrict the practice of immigration law. The federal government chose not to prohibit practice by non-lawyers, as the BC government had attempted to do; instead, it set up a regulatory regime to ensure the ability and integrity of immigration consultants and the quality of their service.
Standing Committee on Immigration and Citizenship
In 2002, the Minister of Citizenship and Immigration Canada created an advisory committee to identify problems within the immigration consulting industry. The committee’s task was to propose recommendations on how to regulate the industry.
Regulation in the industry was needed as there were no set standards for the level of education, the quality of services, or the professional accountability necessary to offer services as an immigration consultant.
The lack of standards resulted in a deficiency in protecting consumers within the immigrant communities. Immigrant applicants did not understand the differences between a lawyer, an immigration consultant and a non-governmental organization and were unfamiliar with Canada’s immigration laws.
The Committee found that some consultants were unscrupulous and held themselves out as experts on the subject of immigration despite the fact that they had little or no training or experience. Many victims were afraid to complain. There was no formal complaint process established to deal with those consultants who abused the trust of their clients and therefore tarnished the industry as a whole.
The Report of the Advisory Committee on Regulating Immigration Consultants and the Committee’s recommendations resulted in the creation of the Canadian Society of Immigration Consultants (CSIC) – an independent regulatory body for immigration consultants who charge a fee for their services.
Canadian Society of Immigration Consultants
The Government of Canada amended the Immigration and Refugee Protection Act Regulations on April 13, 2004 so that those who, for a fee, advise and represent potential immigrants before Citizenship and Immigration Canada (CIC), the Immigration and Refugee Board (IRB), and the Canadian Border Services Agency (CBSA) needed to be members in good standing with either the Canadian Society of Immigration Consultants, a provincial or territorial bar, or the Chambre des notaires du Québec.
Representatives can play a constructive role in assisting persons in matters before the Minister, an officer or the IRB. Representatives include those who charge fees for their services (such as lawyers, consultants and Québec notaries) and individuals who provide services at no cost (such as family members, friends, non-governmental and religious organizations, etc.).
The purpose of these provisions in the regulations is to prescribe which immigration representatives may or may not, for a fee, represent, advise or consult with a person who is the subject of an immigration or refugee proceeding or application before the Minister, an officer, or the IRB. These regulations did not apply to citizenship applications. The Citizenship Act does not contain the same regulatory making authorization as IRPA.
The provisions in the Regulations:
— define the meaning of “authorized representative”;
— specify that a person who is not an authorized representative may not, for a fee, advise, represent or consult with a person before the Minister, an officer, or the IRB;
— specify that students-at-law are not deemed to be representing, advising or consulting a person who is the subject of an IRPA application or proceeding, for a fee, if they are working under the supervision of lawyers or notaries who are the authorized representatives of that person;
— require immigration and refugee applicants to provide CIC or the CBSA with their representative’s contact information;
— for authorized representatives, immigration and refugee applicants must identify the organization (Chambre des notaires, CSIC or Law society) and provide their representative’s identification or membership number;
— permit a person who is not an authorized representative to provide advice, represent or consult for a fee for up to four years after the Regulations come into force, if the application or proceeding on which they are providing representation was submitted or in progress before the new regulations came into force; and
— allow CIC, the CBSA and the IRB to conduct business with representatives who provide their services for a fee if they are members in good standing of one of the organizations described in the definition of authorized representative.
Since provincial and territorial law societies and the Chambre des notaires du Québec already regulate their profession with membership standards, codes of conduct and effective complaint mechanisms, lawyers and Québec notaries need not be members of CSIC.