Citizenship and Immigration Committee on May 7th, 2019

[The Vice-Chair, Conservative, Michelle Rempel]

Great.

Now we are on to Mr. Jain.

[Ravi Jain, Lawyer, Green and Spiegel LLP, As an Individual]

Thanks for having me here.

I should note that I am vice-chair of the Canadian Bar Association, and I'll be chair in August, but there just wasn't time for us to go through our vetting process, so I am making these remarks in my personal capacity, with thanks to some of my colleagues for their comments.

It is a tacit acknowledgement of failure to spend $100 million over 10 years to educate the public on how to protect against fraudulent immigration consultants and to spend so much taxpayer money on strengthening compliance and enforcement measures for consultants, including government oversight of a new college for them, when consultants could have easily been brought under the supervision of lawyers at no cost.

It seems the government is trying to do three things: fight ghost consultants, tackle fraud by registered consultants and deal with competence issues amongst registered consultants. Let's deal with those first.

We don't know how the money will be allocated, but I will say that I do support increased funding to CBSA and on overseas positions to liaise with foreign governments and encourage them to crack down on ghosts, but the best way to deal with ghosts is if only lawyers may represent for a fee, because then the messaging becomes quite simple, and the public is not confused with different categories of representatives. Saying that only lawyers may practise law for compensation is not complicated to communicate or grasp.

Now let's deal with registered consultant fraud. As The Globe and Mail reported in its three-part investigative series covering 2,600 foreign workers and students: “...exploitation is far more prevalent than has been reported, primarily because most victims are reluctant to go to the authorities for fear that they will be deported.”

Navjot Dhillon appeared before you two years ago talking about consultants asking clients to pay tens of thousands to find employers to support permanent residence applications with kickbacks to employers. He said, “I have never seen a lawyer going that route.” He even described female students being asked for sexual favours. He said that there was no documentary proof of such acts, so it was very difficult to hold people accountable for such fraud, echoing what the Globe had said.

If victims are unlikely to complain and documentary proof is illusive, setting up a bureaucratic administrative penalty scheme for negligent consultants and a compensation fund and liability insurance will not provide the desired public protection, because people don't come forward.

Now let's deal with competence amongst registered consultants. Two years ago, Paul Aterman, the then deputy chair of the IAD of the IRB, differentiated the rigorous training lawyers go through and said, “...there is considerable scope for improvement when it comes to consultants acting as litigators.”

Exactly two weeks ago, the former Federal Court of Appeal Justice John Evans, wrote a Globe and Mail op-ed, and in it he said, “Accurately determining whether a claimant meets the legal test for refugee status presents unique challenges, both factual and legal. For a claimant without a lawyer they are likely to be insurmountable.” He said, “Lawyers’ professional skills in identifying relevant evidence and presenting it cogently enable refugee decision makers to navigate around these obstacles to accurate fact-finding.”

He said that lawyers:

... play a vital role in assisting the board and the federal courts on the interpretation and application of the law. Refugee law is very complex. The IRPA alone has more than 200 densely packed sections. It must be interpreted in the light of international human-rights law and...the protections of the...Charter... Arguing cases in this area also requires knowledge of administrative law, a set of principles that even seasoned litigators find difficult.

My submission is that those comments apply equally to application work and solicitor work. There is no such thing as simple applications, by the way. Thus the issue is lack of competence, or put differently, under-representation can be worse than no representation.

Elizabeth May illustrated this well when she said:

...in my little riding office, we spend at least 80% of our time on immigration and refugee cases. The ones that come to us, after an immigration consultant has “helped” the applicant, are the hardest to unravel, with the the multiple mistakes that have been made.

Adam Vaughan said, “I think all of us as MPs know that when one single department generates 75% to 80% of our work, depending on our ridings, there is something wrong.”

Michelle Rempel said:

We just need to think of the cost of 338 members of Parliament employing someone in their offices just to do immigration case work, or the amount of resources required within ICCRC to look at poor applications, or the cost of the deportation of people who have been given bad advice

There were 1,600 under CSIC, and now there are over 5,500. If a future government proceeds with the college—and here are my recommendations if you're proceeding with this—they should not be grandfathered; all consultants should undergo language testing; referral fees should be barred, which they aren't; all should be audited; and dues should be sufficiently high to cover the compensation fund and liability insurance. I don't know, by the way, how you compensate for a lifetime of potential Canadian earnings when someone has lost out on their permanent residence.

Further, I submit that a Canadian Bar Association executive member should be invited to sit on the college board, and lawyers should be exempt from this administrative penalty scheme, given that law societies have robust disciplinary measures, as we've heard.

Even nurses who complete an entire degree program have restrictions on their practice. The same should apply to consultants with respect to litigation, which should be completely off limits; but again, a future government may change course.

Finally, I just want to take the remaining time to talk about a few myths I'd like to dispel. This is all based on assumptions, this whole reality of immigration consultants. It is assumed that immigrants prefer to go to members of their own community for legal advice and representation, that lawyers cannot fulfill this role, but this is utterly outdated, given the diversity of the bar today.

It's also assumed that immigration lawyers are inaccessible because we charge too much, and yet, unlike family, criminal or civil litigators, most immigration lawyers litigate in the four-figure range and provide upfront, fixed-fee quotes and reduce fees based on clients' ability to pay. Of course, we do a tremendous amount of pro bono work, whether that's at the airport.... There are Trump's executive orders, times of natural disasters, Syrian refugees. There is no comparable tradition among the consultants, even though they have been in business for decades now.

Also, most immigration lawyers operate as sole practitioners or in small firms with low overhead, so we're not talking about big, fancy firms with a million dollars' worth of art. They save money for clients and taxpayers by discouraging unmeritorious applications and appeal, which is a timely consideration given the pressure on the IRB. We aren't business people. We're members of the bar. We're mindful of the critical role we are entrusted with in acting for the client's best interests and upholding the fair administration of justice.

Propping up consultants for a third time—

[The Vice-Chair, Conservative, Michelle Rempel]

You have about 30 seconds.

[Ravi Jain]

—albeit with more government control and more penalties does nothing more than protect them so they continue to practise law, now with more government bureaucracy paid for by taxpayers. What's worse, telling people that these consultants who are registered with the college are overseen by the government sends a wrong message. It may lead to confusion that people are hiring government agents or that they will receive more favourable treatment than if they hired lawyers whose regulatory bodies are not intermingled with the government. People are disappointed to learn that consultants who run law offices and call themselves lawyers are anything but. This will get worse with the Queen's and Sherbrooke programs because people will say they graduated from law school.

Sadly, stories of fraud will continue. The next review will be maybe the triannual review. What we'll be hearing is, “Oh, it's just a young body. Just give them a chance”.

[The Vice-Chair, Conservative, Michelle Rempel]

Thank you.

Professor Trabucco.

[Professor Lisa Trabucco, Assistant Professor, Faculty of Law, University of Windsor, As an Individual]

Good morning, Madam Vice-Chair and members of the committee. Thank you for the invitation to appear here this morning.

I'm an assistant professor in the faculty of law at the University of Windsor. I'm also a lawyer. I've practised for 15 years. I'm a doctoral candidate. My research focuses on paralegal regulation and access to justice in Ontario. I recently authored two publications that address the topics of paralegal regulation and the regulatory scheme and the extent of independent non-lawyer legal service provision that exists in Canada. Much of it is authorized by statute, including immigration consultants. Previously, I taught for 10 years in college paralegal programs in Ontario.

I would like to address today the public interest mandate of the college of immigration and citizenship consultants act, specifically in proposed section 4. It's set out in part 4.

First, however, I would like to briefly situate this issue—the important issue, I think—of the regulation of immigration and citizenship consultants within the broader context of non-lawyer legal service provision.

It is clear that there is an important role in Canada for non-lawyers who provide legal services to the public, independently and for a fee. This committee has recognized that. The legislation recognizes that. Not only are the roles of non-lawyers well entrenched but they have also been authorized by statute at the federal, provincial and territorial levels, and in some jurisdictions, as far back as the 1800s. More recently, the Supreme Court of Canada has acknowledged the expertise of independent, non-lawyer representatives before administrative tribunals. In Ontario, paralegals have been licensed since 2007 as independent providers of legal services.

Studies have shown that non-lawyers are effective representatives in a variety of areas and practice settings—with appropriate training and experience. The regulation of paralegals has been successful in Ontario in providing effective consumer protection in the public interest. What is key is the design of the regulatory scheme. That design and that regulatory scheme matter.

It is also helpful to consider this committee's previous recommendation in the “Starting Again” report of 2017 that the mandate of any new regulatory body be a public interest mandate empowered to regulate and govern the profession. It should include protection of the public by maintaining high ethical standards to preserve the integrity of the system, to protect “applicants from exploitation by maintaining high standards of competence and encouraging reasonable fees for services rendered”.

With that in mind, I turn to proposed section 4 of the bill, which sets out that the purpose of the college is to regulate immigration and citizenship consultants in the public interest and to protect the public. The public interest is at the heart, or should be at the heart, of any regulatory scheme. The public interest is served by access to quality and affordable services provided by competent providers. Regulation in the public interest must therefore aim to ensure quality services, competence of those who provide those services and also address the cost of those services.

Part 4 already lists measures by which regulation in the public interest—and to protect the public—can or should be realized, including qualification standards. My concern, though, is that it does not contain specific language with respect to competence or cost of services. These are components of the public interest and access to justice. While they do appear elsewhere in the act in various places, I'm of the view that they should be upfront in proposed section 4 so it is clear they are part of the college's public interest mandate. I think that overall would strengthen the regulatory scheme.

If we look at competence, again the 2017 report recommended that the regulatory scheme ensure high standards of competence. As I've said, no such language is found in section 4. I think it should be and could easily be added.

Proposed section 44 of the bill does look at licensing, standards of professional conduct and competence established by a code of professional conduct. Proposed section 4 requires compliance with a code of professional conduct.

Compliance with a code of conduct is not necessarily competence. I think they need to be two separate things and competence needs to be set separately in proposed section 4.

I would recommend language such as one of the listed items, “ensuring high standards of competence of licensees”, being one of the measures by which the college would regulate in the public interest and to protect the public.

I am going to make a few brief comments with respect to fees charged by licensees. The 2017 report, again, had a recommendation that for any new regulatory body, mandates should include encouraging reasonable fees for services rendered. I appreciate that's difficult to do but, again, there is not even a mention of fees or costs of services in section 4 of the act. Again, I think there should be because affordability of services is one key component of access to legal services, access to justice in the public interest.

I would recommend adding another item to section 4 in that list, another subsection with language similar to this. Part of the college's mandate is “establishing reasonable fee guidelines to be charged by licensees”.

I argue in conclusion that fees and competence should be put in section 4 as part of the public interest mandate, in competence and cost of services, to make it clear that these are components of what regulation in the public interest and protection of the public entails.

With that, I appreciate being here, and I am happy to answer further questions you might have with respect to this matter.

[The Vice-Chair, Conservative, Michelle Rempel]

Thank you very much to our witnesses.

We will begin with Ms. Zahid for seven minutes.

[Salma Zahid, Liberal, Scarborough Centre, ON]

Thank you, Chair.

Thanks to all the witnesses for your important testimony.

Mr. Dean, based on this legislation, the minister will appoint the majority of the board members. They can be found outside the industry. The minister will have the power to step in if there are issues and the minister establishes the code of conduct. He will also have new powers to require the regulator to take action and change its bylaws.

Do you feel these measures will help to ensure an effective, accountable regulator?

[Ryan Dean]

Yes, absolutely. One person is going to have oversight. They can make a decisive decision whenever there is a problem.

[Salma Zahid, Liberal, Scarborough Centre, ON]

In regard to the compensation fund, when we did the study in 2017, we heard a lot of testimony. In this legislation, the College of Immigration and Citizenship Consultants would create a compensation fund for persons who are adversely affected by the work of a licensed consultant.

Mr. Jain, can you please explain how this would help the most vulnerable people and how you think the department expects this compensation fund to work? Because we heard a lot of testimony from vulnerable people in 2017.

[Ravi Jain]

It's terrible when people go to someone and they think they are going to a lawyer. Most of the time when people come to see me, they say they went to this lawyer and he misguided me. I ask the person's name. I look it up and they are an RCIC. They say that all the staff refer to him as a lawyer and he himself refers to himself as a lawyer.

However, the compensation fund is too little, too late, because how do you compensate for a lifetime of earnings a person could have made in Canada if their express entry application and their spousal sponsorship had gone through and they were making Canadian dollars and they are from India where they were only making $3,000 or $4,000 a year? You can't compensate for that.

Sometimes, when people are complicit in it, they are not going to go the distance. The department is never going to be sympathetic to someone where they are somewhat complicit because they went to a consultant who asked them what they did. Maybe there was no other way they could qualify and they suggested something and they went along with it. This is to the client, because you asked me about this. You know the government is never going to say it wasn't their fault, so here's immigration; here is their permanent resident visa. It's not going to happen. The department is never going to agree to that.

[Salma Zahid, Liberal, Scarborough Centre, ON]

Ms. Trabucco, can you please add to that compensation fund element?

[Prof. Lisa Trabucco]

I think there will always be room for incompetent and unscrupulous practitioners. I daresay there are lawyers who may be as well. The difference is that law societies have been around for a very long time, regulating lawyers who have been held to high standards. That doesn't mean there aren't bad apples, of course.

These are very similar arguments that preceded paralegal regulation in Ontario. Those conversations went on from at least the mid-1980s until regulation was implemented about incompetent and unscrupulous practitioners in 2007. They certainly do exist, and that's a serious problem, a serious concern.

I think regulation is the answer. How that plays out, I'm not sure I have the expertise to speak to the actual compensation fund. It's difficult. I think it's like anything. How do you compensate people after the fact? It's no different from other areas of law in some ways. If someone is seriously injured in an accident, money compensates but it never brings that person back to the person's pre-existing physical or mental or emotional health.

[Salma Zahid, Liberal, Scarborough Centre, ON]

I have one more quick question for you. You mentioned in your testimony that studies on access to justice have been done in Ontario. We have seen a lot in the news about recent cuts to legal funding for refugees and immigrants. Do you think the reduction in funding for immigrants will make more of a demand for consultants? That would make it more important to have the model of the college, right?

[Prof. Lisa Trabucco]

Yes, I think you're right. I think less legal aid funding will then drive people to other sources, and to the least expensive. I think that's difficult in all areas. Cost is kind of a double-edged sword, I think. In some ways, the high cost of legal services that many have written about is due to the cost of overtraining. We don't need, for example, a surgeon to pierce an ear. On the other hand, in terms of the cost of services, if there's no funding, then people will go to....

Affordability is a big part of the regulation of paralegals. Somehow, that's fallen off to the margins in Ontario. Affordability is a big part of it. I'm not speaking specifically to refugee and immigration lawyers themselves or to the costs of their services, but in a general sense.

[Salma Zahid, Liberal, Scarborough Centre, ON]

Mr. Dean, did you want to add to that?

[Ryan Dean]

Yes. Just quickly, the compensation fund, in my opinion, mirrors an insurance fund. I really think this question ought to be answered by actuaries, who calculate these kinds of things for catastrophic events and whatnot. That will nail down how much there ought to be in the fund. We can kind of estimate, but we don't know. An actuary will figure that out.

[Salma Zahid, Liberal, Scarborough Centre, ON]

My next question is for you, Ms. Trabucco. We heard in this committee back in 2017 that many people were afraid to come forward to make a complaint about the immigration consultants. It was very difficult to hear that testimony from people. Do you believe the measures being proposed in this legislation will encourage people to come forward or to bring forward the complaints or issues they face with consultants?

[Prof. Lisa Trabucco]

In a general sense, I think so. I think it certainly goes some measure toward addressing those. Proposed paragraph 4(c) talks about “public awareness” and about making the public aware. I think there is a provision for that in the bylaws. There has to be a very serious....

Mr. Jain makes some very important points about people misrepresenting themselves, about immigration consultants or paralegals misrepresenting themselves. Of course, a lot of that can be covered by a code of conduct and competence standards. I mean, there are lawyers who misrepresent themselves and commit fraud in real estate and banking matters as well. I do think the act goes at least some distance toward addressing that.

[The Vice-Chair, NDP, Jenny Kwan]

Thank you.

We'll move on to Ms. Rempel for seven minutes.

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

Thank you, Madam Chair.

Mr. Jain, thank you for what I think was a pretty accurate assessment of the situation. I say this after eight years of running a member of Parliament office where, to the points that have been made, I employ someone just to deal with immigration casework.

This morning the Auditor General rolled out a report that said that 70% of people who were trying to access the IRCC call centre were prevented from reaching a live agent. The wait time was approximately 32 minutes. There were no service standards there. Even colleagues from the immigration consulting profession said that sometimes false information was given.

I look at this from the perspective of the end-user. Something that the government did not answer for me yesterday, when we had the minister and department officials here, was what is the definition of “legal advice” as it pertains to the immigration consulting profession? That's really what my concern is with perpetuating this system as it is right now. We still have not, from a legislative perspective, dealt with the nub of that, even though I feel there's probably a lot of jurisprudence that defines that. What constitutes somebody helping somebody filling out a form? What constitutes legal advice in terms of the scope we're dealing with today? Are immigration consultants regulated adequately to practise only within something that would not constitute providing legal advice?

[Ravi Jain]

I can speak to that. I watched the testimony last night so I did see what the minister said. I actually think the minister was wrong to say that if you're helping out with a form but not for a fee then it's actually providing legal advice and you have to have proper training, because you can actually assist someone who is a friend in answering questions as long as it's not for a fee.

My issue is that it is absolutely legal work. Whatever the consultants are doing, they're absolutely practising law in terms of whether they are advising on what information to put on the form. I heard yesterday what they were saying about that. All of that is legal advice. They're getting a fee for it and they are advising. How to answer a form can be quite critical. Are you a member of a terrorist organization? Are you this, or are you that? That's critical information.

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

Unfortunately, our timelines are short. What would be helpful for this committee is if the Bar Association could provide the committee with an opinion to that effect, or some information specifically outlining this because we don't have a lot of detail on what constitutes the code of conduct. That's one of my concerns in perpetuating the system as it is right now.

The other component that I'm looking at was on the point that you made about somebody thinking that they're receiving a government agent because now the government is taking more direct oversight of the profession. I think that is interesting and valid. I also really didn't get much of an answer from department officials on any sort of liability that the government could be undertaking given now that they are overseeing this profession. Do you have any opinions on that? Given that immigration law is one of the most highly litigated fields in Canada, how would legislators go about trying to actually analyze that and then comparing it to the current structure, as to whether or not the government should actually be getting into this business?

[Ravi Jain]

We know there's a long history now of complaints against immigration consultants. If the government is now stepping in, and the minister is giving himself so much power throughout this whole process, the danger, I think, would be that someone could potentially launch a class action one day. They could say, you knew there was this problem. You had testimony from the CBA and others that there was this ongoing problem with consultants. Instead of clamping down on it and calling it the practice of law, which is what it is, you are basically propping them up and allowing them to practise law. You have so much control in it that really you're liable for it.

I think there could be an argument that could be run.

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

I will give you my own example. I have very specific algorithms and practices within my own office to make sure I am not giving legal advice to people when we are working on casework. I worry about exactly what you just said, and also about what my scope of work is as a member of Parliament. What would be also helpful is if the Bar Association would be willing to provide an opinion to us on that perspective. Again, across political stripes, I do worry about the government taking on ownership. I believe that the government's role here is to ensure that information is provided in an accurate, simple way with accurate processes in place, where the call centre deals out information to newcomers, where perhaps there's a little more on translation services.

Could you comment on that approach? To me here we really have legal services and then the responsibility of the government to deliver service in an efficient way that keeps the end-user in mind.