Citizenship and Immigration Committee on May 6th, 2019

[Jenny Kwan, NDP, Vancouver East, BC]

Thanks very much, Madam Chair.

For the protection of the end-user, who would be the applicant, in the event that an individual's representative has been incompetent or even to some degree ineligible to do the work that they undertook to do, a complaint process would be enacted, but aside from the compensation aspect, what about the application itself?

A lot of people fear that by coming forward with a complaint, their application would be rejected or that they would be somehow penalized. Is there protection for the applicant in that context? If so, what is the protection mechanism?

[Lori MacDonald]

A couple of things I think are really important here. As we transition to our new body, one of the pieces of work we will be doing is identifying some of the issues that are coming out of what we see from unscrupulous consultants or people giving bad advice. We have a number of mechanisms we're putting in place to be able to assess some of that information so it doesn't become just a stop-and-start kind of initiative. So if someone's application is in process, and we transition to the new body, if there's an issue in terms of who has given them advice we help them through that process.

We're doing an international survey to find out where people are getting their advice from. We're doing education and guidance with our VACs internationally so they can help educate them in terms of what they are putting in their application. So if they do identify, hey, I think maybe I don't have one of those consultants, or I think perhaps my application maybe isn't filled out correctly, they can identify it to us so we can assist in that process, in terms of sorting through that.

[Jenny Kwan, NDP, Vancouver East, BC]

No. Sorry. What I mean is in the process, as the person is embarking in the process they realize that things have gone awry so they go to a complaint process and say, look, this immigration consultant advised me X, Y, Z, and these things, by the way, are wrong. That is wrong information or whatever.

Is that application then rejected with that outcome, or will they have an opportunity to say, look, I got bad advice? Can they ask to have a new representative come forward and still have their application alive, as an example, and for it to continue to proceed and for the wrong information to be corrected to go forward?

[Lori MacDonald]

We will do two things. We will look at that in terms of what they brought forward to us. We will also ask them if they would like to put a complaint in so we can continue to monitor their application, see what's been in their process and find out if it is true that they have been given wrong advice.

[Jenny Kwan, NDP, Vancouver East, BC]

That work is being done by IRCC and not the college?

[Lori MacDonald]

The application process has to follow its regular application process. At the same time, they can put a complaint into the college in terms of fear that they have been given inappropriate or unqualified advice.

[The Vice-Chair, Conservative, Michelle Rempel]

Thank you.

We will suspend briefly to set up for the next panel. Thank you.

[The Vice-Chair, Conservative, Michelle Rempel]

We will continue with our questions.

Our first round is led by Mr. Tabbara.

[Marwan Tabbara, Liberal, Kitchener South—Hespeler, ON]

Thank you, Madam Chair. Thank you again for being here for the second hour.

I want to continue on with questioning about complaints, and, again, sticking with the theme of protection of the clients.

We often have heard that clients are often given wrong advice, or have paid a substantial amount of funds for a particular service. If that has been the case for the client, in the complaints process that we've put in place, we have put in additional tools to deal with complaints and disciplinary matters, and the authority by statute to search the premises and inspect the copy records.

If an immigration consultant has given wrong advice, or misled the client, if you were able to go into the premises and search certain documents, how are we protecting the client in this scenario?

[Lori MacDonald]

One of the things I would start off with is that one of the advantages of this new statute is that it gives the board or the complaints committee the power to request those things, which doesn't exist right now. That information then can be used in a disciplinary process or a complaint process to establish the case against the consultant.

In essence, it gives teeth to a process—that doesn't exist at this time—to be able to follow through and to have a consequence or an outcome for the person putting the complaint in.

[Marwan Tabbara, Liberal, Kitchener South—Hespeler, ON]

On the first panel I asked about licensing and training. Now the new body would be responsible for a set of rigorous training. However, there are follow-ups with that training for every immigration consultant to abide by, correct?

Let's take an immigration consultant. At the beginning, they take certain training, education. They are certified. They have been doing the work for five, six plus years. What's the ongoing training for that?

[Natasha Kim]

That would also be set with bylaws, by the board, which would encompass both public interest directors appointed by the minister as well as elected members. The board would set up the bylaws that would establish the conditions for someone's licence, which might include, for example, continuing education on a regular basis.

[Marwan Tabbara, Liberal, Kitchener South—Hespeler, ON]

If you see that a consultant is not forthright and not abiding by these bylaws, what measures can you put in place to ensure that the consultant is penalized, maybe fined? Depending on the severity of...the consultant and his or her operations, what are some of the mechanisms in place to ensure they're abiding by these bylaws?

[Natasha Kim]

Under the bill, in what we expect to be the code of conduct, we expect there will be obligations to abide by bylaws or conditions of your licence or qualifications in order to be practising as a consultant. For example, if you're not abiding by those things, there could be consequences either through the registrar or the disciplinary committee, such as having your licence suspended or revoked or having penalties imposed.

[Marwan Tabbara, Liberal, Kitchener South—Hespeler, ON]

You would go as far as even suspending their licence, if not revoking it, if there were egregious misrepresentation of their services, correct?

[Natasha Kim]

Yes. I would add that the disciplinary committee's decisions also would be published so that others could know about it.

[Marwan Tabbara, Liberal, Kitchener South—Hespeler, ON]

We've heard testimony from individuals. What are some of the punishments—I shouldn't say punishments—some of the steps we've been taking to regulate consultants, and how is this a step forward?

[Natasha Kim]

I think I would underscore that fundamentally, this is quite a different governance regime compared to the status quo. Currently, the regulator is set up under the Canada Not-for-profit Corporations Act, as someone alluded to earlier, which is essentially a generic governance framework for private corporations or charities or associations, whereas this would set up under law, under statute, the framework for the governance of a profession. This gives additional teeth and clear mandate in terms of protecting the public interest, as well as clear obligations and accountability—for example, to report to the public and have that report before Parliament.

[Marwan Tabbara, Liberal, Kitchener South—Hespeler, ON]

Excellent. Again, I'm going to ask the same question about the fear of filing a complaint. I think we need to inform individuals that if they are using a consultant, or even go as far as an immigration lawyer, they still have rights as a person who's using the service. We need to inform them that they are able to file complaints. It's safe. It won't jeopardize their applications.

What are some of the measures we've put in place to educate individuals on their rights and their ability to file a complaint without any repercussions?

[Lori MacDonald]

It is a tough issue to challenge people's fears and concerns in terms of coming forward. What we've developed is really a multipronged approach. It includes a lot around education, awareness and outreach, and education to our clients, to people who deal with our clients, to our international offices overseas. It's one of the reasons we're putting in these new resources overseas, so that—

[The Vice-Chair, Conservative, Michelle Rempel]

Thank you, Ms. MacDonald.

Mr. Genuis.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Thank you, Madam Chair.

Maybe I'll start with a comment about the testimony we heard from the minister. There is clearly a big problem here. We've got a section in an omnibus budget bill that says a subsequently developed code of conduct will define professional misconduct, but we're not getting—from the minister, at least—very basic questions answered about the content of that code of conduct.

The section of the budget bill that refers to this, says:

44 A licensee must meet the standards of professional conduct and competence that are established by the code of professional conduct. A licensee who fails to meet those standards commits professional misconduct or is incompetent.

We have no guidance from the legislation, whatsoever, about the nature of those standards, at least as far as I can tell.

As I asked the minister before, if somebody is advised to make a false refugee claim, would that qualify as professional misconduct? He responded that he didn't want to get into details that were that granular.

I feel that as members of Parliament, we don't have much meaningful direction in this legislation at all. For people looking at this and trying to make up their minds about what the impact is going to be, there is an accountability problem. It should be pretty easy for the minister to say that there is a problem with somebody being advised to make a false claim.

With that said, I'd like to hear your comments on whether the minister has given you advice about the content of the code of conduct. Have you given him advice about what the code of conduct should entail? How far advanced is the process of developing those standards?

[Lori MacDonald]

I'll start off and then turn to my colleague, Ms. Kim, to help out.

Could I just step back for one second, and talk a bit about the composition of the board? Ms. Kim made an important point earlier with respect to that.

In the new college, our majority members are set by the minister as majority public interest directors. That body will be responsible for setting up the code of conduct, through regulation. We could assume what will be in some of those pieces, with respect to the code of conduct. They're the general kinds of things you would want to see: how you comport yourself as a professional, the expectations of comportment of consultants, conflict of interest issues, the types of inappropriate behaviours and so on.

Those kinds of things would be established in a code of conduct, but we couldn't presume at this moment to know what those would look like, because it will be set up in regulation. That is part of the task of the board, and will also be part of the task of setting bylaws.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Can I interject on that?

Subsection 43(1) of the act says:

The Minister must, by regulation, establish a code of professional conduct for licensees.

If I heard it correctly, you were talking about the board setting up the code of conduct. The legislation says that the minister sets up the code of conduct. Can you clarify which one it is?

[Natasha Kim]

Certainly subsection 43(1) does specify that it's the minister, and that any further changes proposed by the board would have to be approved by the minister.

The code of conduct is not set out in the statute, because that would require legislative amendment every time it needed to be updated for any reason, but it would be set out in subdelegated legislation, by regulation. The code would include such things as improper and incompetent conduct, and there would be disciplinary action flowing from that.

In the scenario the member provided, it's difficult to speculate, but I think disciplinary action could flow from providing counselling of a false claim. Counselling misrepresentation would also be an offence under IRPA.