Citizenship and Immigration Committee on Oct. 25th, 2010

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

Ms. Gracey said in her presentation that the fund has collected $1.2 million from the members. Ms. Gracey further said that, since then, there have been operating expenditures, and so on. Could you tell me what the difference is between the two?

You came to testify before the committee. I am not asking you to tell me the amount to the dollar, but you must have an idea of what is left. Is it half, three quarters, 80%?

[John Ryan]

Oh, the majority of it is left and I can give an undertaking.... I don't have that figure right at hand, Mr. St-Cyr, but I will certainly by Friday, given that I've just heard the motion, ensure the committee gets that information.

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

All right.

In your presentation, you also said that there was a compensation mechanism for people who have allegedly been defrauded by the members of the association.

When do the consultants have to be members? Is it when the crime is committed or at the time of the court decision?

[John Ryan]

Yes, when they pass our standards, our exam, obtain a college diploma from a recognized institution across Canada, and stand our bar to get into the profession; there is a professional bar that they must write and pass. Plus, they must pass an exhaustive background check that goes back to their eighteenth birthday for any criminal record, credit checks, and all of this kind of stuff with respect to good character. Then they become a member, Mr. St-Cyr.

The day they become a full member of the corporation is the day they're covered on a move-forward basis.

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

But, if a consultant is already a member when the crime is committed, and then leaves the association or is expelled, the person will still receive compensation.

You talked about compensation for damage and financial losses. Is there a ceiling for the amount?

[John Ryan]

Obviously the amount that's in the fund would be the ceiling.

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

But are there no regulatory limits? If someone's loss is $500,000 and, if the money is available, will the whole amount be covered? Isn't there a limit, like with insurance coverage?

[John Ryan]

It's much similar to the law society fund, Mr. St-Cyr, LAWPRO, that's offered by the Law Society of Upper Canada. It's there to compensate the criminal actions of a member, in addition to errors and omissions insurance, which covers a whole range of other problems.

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

In your presentation, you also stated that the $1.2 million fund—or whatever is left, at least—should obviously be returned in full to the new association that would be created, if necessary, in order to cover the wind up costs.

What makes you believe that it is so obvious? It seems to me that a fund designed to protect the people has its own autonomy that could very well be transferred from one body to another since it is a legal entity and has its own legal bank account.

[John Ryan]

I'm certain that could come as a result of negotiation between the new regulator, if there is one, and CSIC. I will say, however, that you have to understand that this $1.2 million is still a fund that has not been properly funded.

Our actuarial studies in terms of the risk require a much larger fund. We have decided that in order to try to minimize the impact, or at least make it workable with a membership of 1,800 members, this has to be built over a five-year period. So when you are focused in on $1.2 million, I'll say that an actual fund that's going to provide the necessary protection--and remember, this only came in to 2008--is going to have to be in the order of closer to $4 million, given the number of people it's covering and in fact the impact of what Bill C-35 is going to mean, given that there's now a new offence. This means, most probably--and hopefully, if CBSA does what they're going to do--that there are going to be increased convictions and prosecutions of members, potentially, and therefore more payouts from the fund.

It's really a question of risk in terms of what the fund has to be, how big the fund has to be, and how that's built up over time.

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

Actually, it would be in the consulting industry's best interest not to start from scratch. I agree with you that we must increase that fund and that $1 million is not enough. Perhaps we should go up to $4 or $5 million.

However, I don't see why it would be in the consulting industry's interest to start back at square one by starting a separate fund. In my opinion, it goes without saying that the fund should be transferred to the new body, if necessary, so that it takes over the one million that's already there. Obviously, I understand that the responsibilities also have to be transferred. We cannot transfer the funds and leave the responsibility to the former body.

I am not sure whether my colleagues see the matter in the same way. Some might see a potential threat if the association wanted to waste the fund already accumulated.

Anyway, whether it is your association or another one, we are still talking about the interests of the consulting industry. It would not be in the interests of any of your members to start a turf war or to squander the money in the fund and bring it down to zero.

[John Ryan]

Monsieur St-Cyr, I agree with you. The $37 million that's already been invested by members to build up CSIC, with all the warts it currently has, seems to me to be an investment, as is the investment fund. I agree with you: I'm not very comfortable with the fact that we're looking at starting at square one. I think the current problems--that may or may not exist--with CSIC certainly can be fixed, rather than throwing out the baby with the bathwater.

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

In her opening remarks, Ms. Gracey very clearly stated that the funds would instead be repatriated to the parent corporation to cover any costs associated with the wind down of its operations. I have to think that this is not completely accurate. There would always be the possibility of an agreement in the industry's interest.

[John Ryan]

Anything is possible, Monsieur St-Cyr. Negotiations with the Province of Quebec to be a support for their regulatory system...it all comes as a result of negotiation and compromise. I'm not saying that's beyond the realm of possibility, but certainly there are details that will have to be worked out, depending on what the government decides to do.

[The Chair, Conservative, David Tilson]

Thank you.

Dr. Wong.

[Alice Wong, Conservative, Richmond, BC]

Thank you, Mr. Chair.

Thank you for coming today to offer your views.

My question is focused more on IMMFUND, so maybe Ms. Gracey can shed light on that. As you mentioned, your organization was created by CSIC and you cover instances of criminal wrongdoing by CSIC members. Do you cover only those members? Or do you also look at other crooked immigration consultants?

[Holly L. Gracey]

We actually only will cover the criminal wrongdoings of a CSIC member at this time. CSIC itself can regulate only its members, so IMMFUND will only be responsible for providing compensation to CSIC members' victims, for lack of a better term. At this point in time, it's restricted to only those who have been convicted criminally, but certainly as the fund matures and grows we're hoping to widen the exposure and coverage as well.

[Alice Wong, Conservative, Richmond, BC]

Thank you.

Let's look at another area now. CSIC's own annual report indicates, as you also indicated in your presentation just now, that there have been numerous cases of complaints against CSIC's members, together with disciplinary actions. However, it also states that since the creation of IMMFUND, there have been no claims filed against the fund. Can you explain this? These two don't seem to agree with each other.

[John Ryan]

Yes, absolutely. CSIC, as you know, was created in 2004 as the result of a delegation of powers of the Governor in Council to CSIC to educate, accredit, and discipline its members. That's CSIC's power, CSIC's mandate, and that's in the public interest.

From 2004 to 2008, CSIC essentially was fighting an uphill battle, because the Government of Canada chose at that time to give a four-year hiatus to anyone who had an application in front of the government if they were a consultant: they could continue to practise without having to register with CSIC. So really, immigration regulation has only been in place, I would argue, since 2008.

As part of a contribution agreement that we signed with the Government of Canada, we were committed to establish a compensation fund. With everything else we had to roll out in the regulator, it simply was not possible to start establishing that compensation fund until 2008, so the fund itself has only been in place since 2008. However, I must say that a full errors and omissions policy on every member, which is mandatory, has been in place since 2004 for members of CSIC.

I think it's important that the committee understand that full-blown regulation, as limited as it is, post application being received by the minister, has only been in place since 2008. In fact, it just came into effect around the time that the standing committee issued its last report.

[Alice Wong, Conservative, Richmond, BC]

Okay. So that's the reason you gave.

I'll give my time to Mr. Dykstra.

[Rick Dykstra, Conservative, St. Catharines, ON]

Thank you.

One of the other areas that we pursued a little bit is the whole aspect of searching, seeking out, and giving authority to the body that will take the place of CSIC's mandate once regulations are passed and once they've gone through process. I wonder if you could just comment briefly on what your thoughts are on this process taking place prior to the applicant filing an application versus after.

[John Ryan]

Having been a member of the minister's advisory committee on the regulation of consultants--one of the 15 members, including the treasurer of the law society--that recommended initially this model to the minister, I can tell you, Mr. Dykstra, that I'm very happy the government has listened to us, finally, as over the last six years we've been asking for a specific penalty with respect to immigration consulting.

We at the regulator have been fighting an uphill battle because people have not had to be a member of CSIC. So we've had an involuntary system where you've had good consultants, who have decided that they're going to go through competency testing and are going to prove that they're good consultants, honest consultants, and were willing to pay the freight, while their competitors just around the corner were allowed to trade, advertise, and continue to do so with the blessings, in many cases, of the CIC and the department.

We're very happy with that aspect of the bill, so I want to congratulate the government on that.

Secondly, the other frustration we had was with the exchange of information. We want to congratulate the government as well on the fact that you finally got around the Privacy Act where you can actually share information with the regulator.

[Rick Dykstra, Conservative, St. Catharines, ON]

Well, you've.... I appreciate that. That was actually my next question. It's the whole component that the minister--he or she--can request information from the designated body when necessary.

You also, then, would agree in terms of the authority that the minister is provided under the act to designate a body whose members may represent, advise, or offer to do so for a fee in connection with a proceeding or application under the act?

[John Ryan]

I think the one concern we have with this, Mr. Dykstra, is the issue of the judge and the representative and the role that representative performs in front of the minister. Our members have to represent their clients in front of the minister, much in the same way as a lawyer would have to represent them in front of a judge.

The provincial government has dealt with this. We've recommended in the CSIC submission we made to this committee a slight adjustment in what you're trying to do, which I think will provide for.... In fact, we welcome being accountable, but we think the accountability has to be along a different line, specifically so that.... The members appear before the immigration minister, which essentially creates, in my view, a question of independence and a question of undue influence on the members.

It would be much better, in our view, that CSIC report to the justice minister, potentially, or to another minister of the crown so that they can be held accountable, report to standing committees, annual reports.... Whatever the accountability mechanisms, I think you're going to find CSIC will be very supportive of that.

We do have some concerns, though, Mr. Dykstra, about the regulator being beholden with just a change in a Canada Gazette notice: today you're the regulator and tomorrow you're not. It creates instability, it creates doubt in the marketplace, and it devalues the hard-working immigration consultants who have gone through the process that is saying they're competent.

[Rick Dykstra, Conservative, St. Catharines, ON]

I don't disagree with that. I think there's a point here that's important to make, because the sixth change in this bill is that the newly designated body actually may suspend a person. It clarifies in terms of what you may be able to do in terms of revoking or suspending the membership of a person.

So in some respects, I suppose that's counter to what you're saying, in the sense that the clarification will actually provide the new regulated body more jurisdiction in terms of being able to enforce the recommendations it makes.