Citizenship and Immigration Committee on April 9th, 2008

[Philip Mooney]

I'm not an authority on statutory law and the difference between law and regulation. I can't answer that question. But would I like to see something more, or would we benefit from something more? The answer is yes.

[The Chair, Conservative, Norman Doyle]

Mr. Carrier, for five minutes.

[Robert Carrier, Bloc, Alfred-Pellan, QC]

I have a few questions. Welcome to our committee, despite all the uproar you witnessed.

It's disappointing to see the disparity among the organizations that deal with people who want to immigrate to Canada. We of the Bloc Québécois are aware of the problem, and we believe that it's important to take in people from elsewhere, to be a host society. So we very much depend on the consultants who help these people. We see that the Canadian Society of Immigration Consultants, which appeared earlier, was formed and made official by the government in 2002. An advisory committee had examined the entire question and recommended first that an independent self-regulating organization be formed. That's what was subsequently done.

I wonder whether you were consulted at that time. Did the advisory committee meet with you to hear your recommendations and opinion on the subject?

[Philip Mooney]

Merci de votre question.

As I'm sure you know, there are several different ways of consulting with stakeholders. In the process of forming CSIC, I assume the committee or the ministry at the time decided regulation was a fairly complex issue, so they appointed a panel of industry experts. Those industry experts made a recommendation to the committee, and those experts were the consultative group, and the experts were simply chosen by CIC or the government under their own criteria. People could send in applications, and they picked the panel, which then made the recommendations that led to CSIC. That's different from other representations. There's a different type of consultation when we do the Canadian experience class.

[Alli Amlani]

I can throw a little more light on it.

There were 24 people in the consortium who came forward from the 10 associations. There were a few associations around, and everybody volunteered a few people to make recommendations. The committee then struck 38 recommendations on how to regulate this industry. In the interim it was decided we would have three lawyers and three consultants and three public interest members and a chair as CIC members. That's the core group of 10 people who were first appointed.

As far as consultation is concerned, we, the consultants, had been yearning for self-regulation from 1986. Finally, it happened. That's the extent of consultation.

[Ramesh Dheer]

It goes back to about 22 years ago when we first formed, and I was the founding president. We formed the Association of Immigration Counsel of Canada and we always wanted to go into the regulations.

Eventually, when the ministry appointed this advisory committee--and I was one of the members of the advisory committee and I know all the proceedings--suggestions from right across Canada were made by the advisory committee, and we had a lot of input from different individuals and different organizations.

If I remember correctly, there were three consultants on that advisory committee: me, John Ryan, and Jill Sparling. The others were a couple of NGOs, and I think there were four or five very prominent lawyers from the industry. So the whole thing was dominated by the lawyers, and when I say dominated by the lawyers, I mean for guidance, not to impose anything, but there was a lot of guidance from the lawyers. I remember one or two people from Quebec, and I forgot the man's name--Patrice Brunet, I think his name is.

So in-depth consultations were held as to how to create CSIC, and eventually it was done. The minister wanted to do it, we wanted to do it, and finally it was done. But yes, there was input from various organizations and various people before it was created.

[The Chair, Conservative, Norman Doyle]

Okay, I have to go--

[Robert Carrier, Bloc, Alfred-Pellan, QC]

I would perhaps like to hear the answer of the representative of the Law Society of Upper Canada.

[The Chair, Conservative, Norman Doyle]

Then I'm going to Mr. St-Cyr.

[Julia Bass]

We were consulted, and we concluded that the way in which the society was established was not consistent with the committee's recommendations. We had recommended that an organization be established and that it have the necessary powers. However, those recommendations were not followed.

[The Chair, Conservative, Norman Doyle]

Okay, I have to go to Mr. St-Cyr, because we're running quite a bit over time.

[Thierry St-Cyr, Bloc, Jeanne-Le Ber, QC]

Following Mr. Komarnicki's speech, I would like to continue with the people from the Law Society of Upper Canada. I'm trying to transpose what is done by the Ordre des ingénieurs du Québec, to which I belong. To regularize what's being done in practice, there are two parallel paths. There's obviously the internal discipline of the members of the association, with the syndic, who can intervene and impose penalties on those who do not conduct themselves properly. There is also the ability to prosecute and intervene with people who are not members and who practise the profession illegally.

If I understand what you're telling me, there is a regulatory framework, making it possible to discipline members who freely choose help. It's in its inability to discipline and intervene with non-members that there is a deficiency. Have I correctly understood?

[Julia Bass]

That's it.

[The Chair, Conservative, Norman Doyle]

Thank you, Mr. St-Cyr.

I want to thank committee members and witnesses for being here today.

I want to apologize for the banter that opened up here. Please don't take that as any indication that the committee hasn't been functioning well since we started back about a week ago in Vancouver. With politicians being what they are, and partisan leanings and what have you, this happens from time to time, but not too often.

We thank you for being here. You'll be hearing from us in the future.

We'll suspend for about two or three minutes until we can get our next group to the table.

[The Chair, Conservative, Norman Doyle]

We will get committee members back to the table.

We welcome the Downtown Legal Services, with Mr. Joel Hechter; and the South Asian Legal Clinic of Ontario, with Ms. Anita Balakrishna. As an individual, we have Katarina Onuschak. We also have with us the Canadian Society of Immigration Practitioners, William Rallis, director of communications, Montreal. And we have Sergiu Vacaru, professor with...?

[Sergiu Vacaru, Professor, Canadian Society of Immigration Practitioners]

I come from Brock University. I was in Spain, and I was in the former Soviet Union.

[The Chair, Conservative, Norman Doyle]

Thank you.

Thank you for being here today. Each organization has seven minutes for opening comments.

I will go to you, Mr. Hechter.

[Joel Hechter, Downtown Legal Services]

Thank you, Mr. Chair and members of the committee.

Hilary Evans Cameron and I are here representing Downtown Legal Services, a clinic associated with the University of Toronto's Faculty of Law. We're delighted to see the committee turn its attention to the regulation of immigration consultants, because we see many clients in the clinic's immigration and refugee division, some of whom have come to us after dealing with immigration consultants.

I personally represented such a client last year, whose consultant took a significant sum of money from her on the understanding that he would prepare and file an H and C application for her. That application was never filed. When she arrived at our clinic nearly two years later, having lost faith in her consultant's empty assurances, it was already too late to repair the damage, despite our best efforts.

At the same time as we were making submissions to Citizenship and Immigration on her behalf, we launched a complaint with the regulator. CSIC was either unwilling or unable to conduct an investigation into its member's failure to file the application, despite evidence from our client's FOSS file, which established that the application had never been filed.

Other clients have had similarly tragic brushes with insufficiently regulated consultants.

This is not to say that all, or even most, consultants are bad. In fact, some of the most vocal critics of the current scheme are good consultants, who are desperate for proper regulation, but the system is so deeply flawed that it actually features incentives for those who would exploit it.

I've been researching this problem for the better part of a year, and having spoken with consultants, lawyers, professors, NGOs, and people involved with professional regulation, I'm here today to make one thing clear. This is something you've heard before—you heard it from Mr. Heins earlier, and you probably heard it in other cities as well—that Canada needs an independent agency empowered by statute to regulate immigration consultants. The Canadian Society of Immigration Consultants is not the creature of statute; it's merely a non-profit corporation. For a body like CSIC—which emerged from a comprehensive research process initiated by the government, and whose members are accorded privileged status in federal regulations—not to have an empowering statute is, to our knowledge, unheard of.

A statute is absolutely required for at least three pressing reasons. Number one, right now this regulator has no teeth. Without an empowering statute, disciplinary authority ultimately derives solely from the threat of revoking membership—kicking a member out of the club—which doesn't stop that consultant from becoming a ghost consultant, about which you've probably heard a great deal already, and taking fees for everything but direct representation before the immigration authorities. As you've heard, this is facilitated by IP 9.

With a properly drafted statute, disciplinary sanctions such as fines would be enforceable by the courts. This is the way it works with other regulators in pretty much every province across the country, such as the Law Society of Upper Canada, the colleges of physicians and surgeons, the colleges of nurses, and all the other regulated health professions—all the other regulated professions across the country.

The second major issue is the scope of representation, which is an issue for everyone I've spoken with, from lawyers, consultants, NGOs, to a member of CSIC's own board of directors. Without an empowering statute, non-members are simply beyond the regulator's powers, whereas, as Mr. Komarnicki noted, with the properly drafted statute, a regulator would have authority over the practice area, and not just members. This means that non-members—ghost consultants—would be subject to fines, which could be enforced by the courts.

Third, the regulator has to be accountable. Without a proper empowering statute, clients and consultants have no legal remedy available to them if the regulator fails to follow its own procedures. As Mr. Hu said, just before us, CSIC is accountable to no one. With a properly drafted statute in place, if the regulator did not abide by it, the full armamentarium of administrative law, including judicial review, would be available to those wronged, be they consultants or applicants. This is not to say that many cases would go to court. The mere fact that decisions are subject to oversight creates an incentive on the part of the regulator to comply with fair procedures. That incentive doesn't exist right now.

It is no accident that CSIC was created without an empowering statute. You've heard a lot already about why this happens. The advisory committee recommended against one because it felt that statutes were hard to amend, and a non-statutory body would be easier to criticize.

As for the first justification, that's true of any proper regulatory body, from the law societies to all the other regulators I've discussed. The list goes on. We've seen major amendments to the law society here in Ontario not that long ago. Mr. Heins and Ms. Bass were talking about them. Those are amendments to a statute that updated the system here in Ontario.

The second justification of the advisory committee for recommending against a statute is not particularly compelling either. Surely a regulatory body should be conceived in a manner that considers the interests of the vulnerable clients it purports to protect at least as important as those of the department, so that if the department wants to criticize the body, it can. What's more, if recent experience with medical isotopes is any indication, ministers are perfectly comfortable criticizing statutorily empowered bodies.

Taking a look at the web page for this committee's hearings, I saw that the committee is very concerned that it act within federal jurisdiction. I understand this. I just want to assure the committee—as the advisory committee did at the time CSIC was created—that the 2001 Supreme Court decision in Law Society of British Columbia v. Mangat clears the way for a federal statute to create a proper regulator of immigration consultants. Immigration is under federal jurisdiction. Any conflict with the fact that professional regulation is normally a provincial matter is resolved through the paramountcy doctrine. This should allay any constitutional concerns the committee may have.

Thank you for your time today. We'll be following these oral submissions and the more detailed written ones in the future.

[The Chair, Conservative, Norman Doyle]

Thank you.

Who do we go to next? Anita Balakrishna.

[Anita Balakrishna, Staff Lawyer, South Asian Legal Clinic of Ontario (SALCO)]

Good morning, everyone. Thanks very much for inviting the South Asian Legal Clinic of Ontario to speak today.

The South Asian Legal Clinic of Ontario, also known as SALCO, is one of 80 legal aid clinics funded by Legal Aid Ontario. Our mandate is to assist low-income South Asians in various areas of poverty law, including immigration, because the very nature of our community is that we have a large proportion of immigrants coming into Canada.

In relation to immigration, SALCO assists clients with sponsorship applications and appeals, applications for humanitarian and compassionate grounds, some refugee work, and judicial review work at the Federal Court.

SALCO is here today because we continue to work with clients who cannot navigate the current immigration system. Many of our clients have also been abused by immigration consultants and end up having nowhere else but SALCO to turn to, after having exhausted all their financial resources. Because we provide free legal services for people who qualify, they end up coming to us.

We'd like to highlight for you that we're also here because many of our own South Asian community members practise as immigration consultants, due to their inability to become licensed as lawyers in Canada because of strict financial and other types of barriers to becoming accredited. This context, of course, must also be acknowledged when we're looking at the issue of the problem of regulating immigration consultants.

In addition, many South Asian immigrants who come here are professionally trained back home in various fields and are unable to find jobs in their fields when they get to Canada. So immigration consulting is often a viable and sensible option for a lot of our community members.

What are we seeing at SALCO? While SALCO acknowledges the introduction of a non-profit body to regulate immigration consultants, we continue to see a number of clients who have been represented by incompetent and unethical consultants, resulting in severe consequences for them financially as well as immigration-wise. Because clients often come to SALCO after they have completely exhausted other financial resources, we feel their desperation when they come to us. They have tried every single option to obtain immigration in Canada and have not seen any of the promised results that have been guaranteed, sometimes, by their consultants. Unfortunately it has not appeared to us that this trend has reduced since the introduction of immigration consultant regulation.

Of course, SALCO also sees clients whose immigration consultants have done ethical and high-quality work. Just as there are unethical, unprofessional, and incompetent lawyers, there are unethical, unprofessional, and incompetent consultants as well.

While we believe—and I think you've heard this here today from a lot of people—that a regulatory statute would not solve all the problems associated with immigration consultants providing incompetent legal services, it would be a step in the right direction and would provide clients who have been wronged with a fair, more effective process and legal recourse.

We also think we need to acknowledge one of the root problems a lot of our clients face. It's a simple kind of problem. Many of the immigration processes that have been put in place by our government are very onerous for our clients to even consider navigating on their own. A basic sponsorship application can include up to 11 forms to be completed by the sponsor and the person being sponsored.

For an average client, the forms are confusing and difficult to understand, and for our clients, those with linguistic and cultural barriers, the task of completing applications becomes almost impossible. Couple this with a lack of financial resources and you have a situation where clients can become extremely vulnerable to incompetent immigration consultants, who at times speak the language the client speaks and who are from the community the client is from.

So one of the bigger-picture responses to the problem of immigration consultant incompetency, misrepresentation, and fraud is to simplify some of the immigration processes, such as the application to sponsor a relative, and to make the application forms more linguistically accessible to clients.

Logically, if we make it easier for people to navigate the CIC system, they will not have to seek outside help for things that should be simple processes, like sponsoring a family member.

Now, in terms of some firm examples of what we have seen at SALCO, we saw a client who had hired a consultant for assistance with a sponsorship application. Her consultant took a lofty retainer in cash and advised the client that she would handle putting in the sponsorship application. The client tried to follow up with her consultant three months later to find that the consultant had disappeared.

What is the remedy in this situation? It's to file a complaint with CSIC, an organization with no statutory backing to carry out complaints procedures in the public interest.

Although advised of the option, the client did not file an official complaint with CSIC due to both uncertainly about remedy as well as the desperation to find another legal representative right away to get the immigration process going for her again.

Another example is this. We saw a client who had hired a consultant to assist with an application for permanent residence on humanitarian and compassionate grounds. The consultant put in the initial application but did absolutely no follow-up work. The consultant's name didn't appear anywhere on the application, but his address was used as the mailing address for the client. We discovered that the consultant had received a letter from CIC two years after the application was denied. The client was required to file a new application and pay another $550 processing fee to get the process started again from scratch, which was a complete waste of time and money for our client.

[The Chair, Conservative, Norman Doyle]

Can I interrupt you there? We do have quite a number of people who are presenting, and I've received some indication that there's a great deal of interest in questioning. Maybe you'll get a chance to make some of your points during the Q and A that you didn't make at the opening.

Thank you very much.

Ms. Katarina Onuschak.

[Katarina Onuschak, Member of the Canadian Society of Immigration Consultants, Co-Chair, Education Committee, Canadian Association of Professional Immigration Consultants, As an Individual]

Good morning. My name is Katarina Onuschak, and I am here as an individual. I'm a full member of CSIC and I'm also co-chair of the education committee of CAPIC.

I have prepared an entire speech, but I wish I could just repeat what Joel Hechter said. It speaks for all of us, for those consultants who wanted the regulation, who are trying to comply with rules and procedures that we either don't understand or we simply don't receive. In doing this, we have no way of protecting the public. As Anita was saying, most of the work for us or for lawyers is done before the application is filed. That's when we advise clients. That's when we plan strategy. That's when we tell the client what they need to go through the process. And these services are not regulated. The moment the application is sent, we are sitting and waiting for CSIC to come back, and we react to whatever they have to say.

But that doesn't mean the public is protected. On the contrary, if I don't want to be regulated, I can do basically what I'm doing now for no fee, no hassle, no danger of a heart attack, no responsibility. So I completely agree with Joel. We need regulation. We need a statute. We need a regulator that is responsible and accountable to someone. Right now the CSIC board of directors is not accountable to anyone, not to its members and not to the government. Nobody wants to touch it.

Members tried for years to get some changes made, and we were not able. Our motions for our first AGM were denied on technicalities. We have no way of calling for a special meeting to at least let our board of directors hear what we have to say. We have no remedy.

I came here to talk about education. I'm very proud that I have been instrumental in the education of consultants for years, before CSIC and before CAPIC. As the CAPIC co-chair of the education committee, I know what it takes to educate people. I'm not saying we are all educated, and I'm not saying that all consultants want to be educated, but most of us do. I think we are doing a pretty good job.

We have to complete 40 CPD points--continuing professional development points--in two years. Fifteen points are mandatory, which was mandated by our board of directors. The other 25 points can be obtained through various programs by attending courses, by attending events organized by other institutions.

For example, there is the CBA conference on immigration law, which is held every year. In 2006 and 2007 the conference was the highlight of the education program for lawyers and for consultants, and it was appropriately awarded 15 points. This year it was awarded only 10 points.

Why am I mentioning it? CSIC incorporated the Canadian Migration Institute, which is a for-profit organization that is now providing voluntary CPD points to immigration consultants. The board of directors of this new for-profit corporation is the same as the board of directors of CSIC, so basically they are applying for approval of a program, and then they approved their own two-day program, which is pretty much the same length as the CBA conference, and they awarded themselves 20 points.

There are so many issues, and I am sure you heard from my colleagues in Vancouver or in Calgary. I don't want to go into all the details. I just want to say that we want to be regulated. We want the rules, but we want the rules to be clear, and we want to know that if we comply with all the rules, we have the right to do what we do. If I don't want to be regulated, I simply won't be allowed to work.

Today I am a member. Some people consider me foolish. I have no rights. They can do what I do without the hassle.

Thank you.

[The Chair, Conservative, Norman Doyle]

Thank you very much.

We'll go to Mr. Rallis.

[William Rallis, Director, Communication (Toronto), Canadian Society of Immigration Practitioners]

I'd like to state that the CSIC sitcom has to come to an abrupt end. The government made a huge error in supporting CSIC and implementing it to begin with. The only way out is to stop digging and start all over again.

CSIC is an unaccountable organization. It conducts itself in an arbitrary, unconscionable manner. It makes up the rules as it goes along. As well, it is not an organization that protects the public. I'll give you some examples, very quickly.

Right from the beginning, everyone who was an immigration practitioner should have been grandfathered immediately, then CSIC, as the governing body, could have governed the membership accordingly. It could have provided updates and education as we went along. Then they could be a regulatory body and protect the public by making these educational programs and updates available.

Now we get to the flawed exam, which was not tested properly. The people who put forth the questions were unqualified. There were many correct answers for the questions because of all the unqualified people who put them forth. Therefore, if you wrote the exam at the beginning, you passed, because there was nothing to compare it to. If you wrote it at the end, all the comparisons were flawed, because the whole process was flawed from the beginning.

The fact that people who could not speak English did pass to the set standard and did pass the flawed exam but were not able to work as immigration consultants I find unconscionable. I ask myself, where is the procedural fairness here? Where is fairness here to begin with? There is no natural justice implicated here, and there is a complete disregard for Canadian core values. No one knows what these things are at CSIC whatsoever.

The simple solution would be to say yes, you can practise. You passed the flawed exam, now please take an English course during the evening, and sooner or later you're going to improve your English, and that's the end of it. We're not going to kick you out and throw you to the curb in complete disregard, as CSIC has done.

This is why we say that they conduct themselves in an arbitrary, unconscionable manner. This is why we say that they do not protect the public. Because of this, and because of the now famous Toronto Star reports about immigration consultants from CSIC being caught doing things they should not be doing--I can't read everything, because I don't have the time here--complaints have been put forth, and CSIC will not act on complaints that have been put forth.

Personally, I put in a complaint to the chair. My complaint was acknowledged, but nothing was done about it whatsoever. Also, when I was a transitional member, I ran across some personal hardship. I could not pay my fees. I asked for rule 10.5.c to be implemented, which allows for hardship and staggered payments. They would not implement it. No reasons were given; they just refused to implement it. They said to pay my fees or I couldn't work.

Then out of nowhere, I was told to write the English exam so I could qualify for the entrance exam. That was more money coming out of nowhere. They won't let me work, but then they want my money. I was finally approved, after a long process and after being accused of not writing the English exam with permission. And I had to pay my fees before the passing mark would be implemented. The exam was just a cash grab anyway, because you had so many chances after that to write the exam, one after another after another, all with different names, and all just wanting your money.

If there's any problem with immigration consultants, it stems from CSIC not being able to do its job, because the board members are unqualified to begin with, and they conduct themselves in an arbitrary, unconscionable manner.

As you said at the beginning, the CSIC sitcom has to come to an end and the government has to start all over again.

Thank you very much.

[The Chair, Conservative, Norman Doyle]

Thank you.

Mr. Vacaru.