Citizenship and Immigration Committee on March 8th, 2017

[The Chair, Liberal, Borys Wrzesnewskyj]

Thank you, Mr. Barker.

Ms. Go, for seven minutes, please.

[Avvy Yao-Yao Go, Clinic Director, Metro Toronto Chinese and Southeast Asian Legal Clinic]

Thank you.

My name is Avvy Go. I am the current director of the Metro Toronto Chinese and Southeast Asian Legal Clinic, a non-profit organization serving low-income members of the Chinese and Southeast Asian communities.

Thank you to the committee for giving me the opportunity to comment on the legal framework governing regulated consultants in Canada. I have provided a written submission, which focuses mostly on immigration consultants, partly because they are the most common targets of the complaints that we receive at our clinic. My written submission also highlights some examples of problematic practices, which I will not repeat here.

I just want to talk about the experiences we have working with immigrants, refugees, and people with a precarious immigration status. They are very easy targets for unscrupulous consultants because of their lack of language proficiency, lack of familiarity with the Canadian system, and lack of knowledge about the regulatory framework for legal professions in Canada, and because they are desperate. Many of them do not even know the difference between a lawyer and a consultant. Also, many don't even know where to find help when they need it, so they go to the sources they are most familiar with, including newspapers or websites in their first language, where a lot of the immigration consultants also advertise because they are targeting those ethno-racial communities in their marketing efforts.

While the Canadian government has long been concerned about the exploitation of vulnerable immigrants and refugees by unlicensed or even licensed immigration consultants, the measures taken to date have failed to stop the exploitation from taking place. Instead, the law as it now stands penalizes vulnerable individuals for making the mistake of hiring unethical or incompetent consultants, whether they are licensed or not.

I have highlighted some of those issues. One of them is because of section 10 of the regulations, which requires the applicant to identify that he or she has provided complete and accurate information, which includes the information about the consultant or legal representative. The burden is put on the individual applicant, then, to say that the information is accurate. But in a lot of the cases we have seen, because of their language barriers they won't even know what information has been included or whether or not the consultant has identified himself or herself in the application.

We also have clients who appear before the immigrant appeal division whose credibility has been attacked, because they had hired some consultant who didn't identify themself or they put in the wrong information in their form; and the clients are the ones who suffer.

Another way the system penalizes these applicants is because of the way “misrepresentation” is defined in the IRPA, including subsection 40(1) and section 127. These provisions have been applied and interpreted by the Federal Court in cases where the applicant has no direct knowledge that material facts have been misrepresented or withheld by their legal representative. Because the provision says that misrepresentation is either “directly or indirectly” done, the applicant is held responsible for the action of their representative.

We believe that the Government of Canada has the obligation to protect the public, and our focus is on that protection, although we also have commented on the regulation. We think the government should not penalize applicants who are duped, but should rather focus on how to strengthen the oversight system.

In our recommendations, we call, first of all, on the IRCC to continue to process applications that it suspects have been completed by ghost consultants and that it should advise the applicants of its suspicion, provide them with information on how to find licensed representatives, and give them the opportunity to review the information provided and to correct any errors that have been made.

Second, if the authorized representative is found to have made a misrepresentation on behalf of the applicant, the IRCC should give the applicant an opportunity to correct that information without prejudice.

Third, the IRCC should provide first-language materials to applicants who have already self-identified in their application as not being fluent in English or French, to ensure that they are fully aware of the rules governing legal representation.

Fourth, the government should pass legislation to set up a government oversight body to regulate immigration consultants. There should be specific provisions for admission, accreditation, a code of conduct, scope of practice, and mechanisms for complaints and discipline, and so on.

In the alternative, if the government allows self-regulation among consultants, it should still adopt legislation prescribing all of the same things it would have done otherwise.

As lawyers in Ontario—and other provinces too—we are governed by the Law Society Act that describes in great detail how the classes of licensees are established, admission and other requirements, and so on.

Finally, we think that the government should develop a comprehensive strategy to educate all potential applicants and refugee claimants about the regulations and requirements for consultants and other legal practitioners. One way of doing that is to include that information in the application process itself, and, of course, it must be available in the language spoken by the applicant.

Those are my submissions.

[The Chair, Liberal, Borys Wrzesnewskyj]

Thank you, Ms. Go.

Ms. Dzerowicz, you have seven minutes, please.

[Julie Dzerowicz, Liberal, Davenport, ON]

Thank you, Mr. Chair.

I want to thank all the witnesses. I have only seven minutes and a lot of questions, so I'll get started.

I worked a little at the provincial level. Any regulated body usually has to give a report to the minister annually.

Mr. Barker, is that something you have to do on behalf of IRCC?

[Lawrence Barker]

Yes, ma'am. Under both the Citizenship Act and the Immigration and Refugee Protection Act, as well as our contribution agreement, we report to the government on September 30 each year.

[Julie Dzerowicz, Liberal, Davenport, ON]

Do you put in conviction rates? What are the main things you put in there?

[Lawrence Barker]

We provide information on changes to our governance structure and bylaw and regulatory amendments within our own system. We also provide statistics on complaints and professional standards over the past year.

[Julie Dzerowicz, Liberal, Davenport, ON]

I was told by Ms. Lutfallah of the CBSA at our last meeting that the names of any consultants who are fined or convicted are posted on your website. I was not able to find that. Where is that posted for public viewing?

[Lawrence Barker]

Under our publication policy, the disciplinary committee, as part of its findings, determines whether to publish or not to publish names. That is consistent with all regulatory bodies.

There is a section on our website that outlines publication, with names, of serious offences, especially where suspension or revocation of licence was the outcome. For remedial education orders, where we are satisfied that by additional education the licensee is unlikely to have a repeat incident, the decision is published without their name.

[Julie Dzerowicz, Liberal, Davenport, ON]

Which section is that?

[Lawrence Barker]

There is a section of disciplinary notices that's on our website.

[Julie Dzerowicz, Liberal, Davenport, ON]

Okay. It's a one-pager. I couldn't find any links that actually took me to any names, but maybe I'll—

[Lawrence Barker]

I will be happy to provide the link to the clerk.

[Julie Dzerowicz, Liberal, Davenport, ON]

That would be great.

There seem to be some governance issues. How are directors selected, and what changes, if any, do you think need to be made to improve governance?

[Christopher Daw, Chair of the Board of Directors, Immigration Consultants of Canada Regulatory Council]

As board chair, I'll speak to that.

We're a Canada not-for-profit corporation, a federally incorporated not-for-profit, so our governance structure is determined by that act, and our bylaws flow from that.

Our board constitutes 12 elected members of licensees—RCICs who are elected to the body by the membership—and three appointed public interest directors. We have a dual membership selection, where public interest directors are appointed by the board and the members vote in the rest of the members.

[Julie Dzerowicz, Liberal, Davenport, ON]

Do you think that you have a good governance structure in place? Do you think some changes need to be made?

[Christopher Daw]

We're always interested to hear ideas about how to—

[Julie Dzerowicz, Liberal, Davenport, ON]

But do you have suggestions? Do you or Mr. Barker believe that changes need to be made in terms of your governance structure, or do you think it's fine the way it is now?

[Christopher Daw]

I think the biggest challenge with our governance structure right now is simply that it creates situations such as we have this year, with a huge influx of new board members coming on all at the same time. That can be a challenge.

We don't have any specific solution to that problem at this point, because we are governed by the CNCA.

[Julie Dzerowicz, Liberal, Davenport, ON]

Thank you.

When complaints come in, who actually conducts the discipline? And are the services only done in English and French?

[Lawrence Barker]

The council has an administrator, who is a staff person who receives complaints. That individual spent 29 years at the College of Nurses of Ontario in complaints. She receives complaints, vets the complaint form and ensures that it's complete and correct, and then assigns it to an investigator.

We currently have under a service delivery contract an external company made up of retired RCMP officers. Their sole role is to collect facts; they make no judgment as to the guilt or innocence of the party. We are in the process of moving that function in house with staff—trained investigators—over the next year.

The complaint is sent to the investigator; the consultant is contacted and made aware of the complaint and asked to provide a written response to those allegations. From there, the reply is sent back to the complainant for them to either provide additional information or to refute the response. From there, it goes to a panel of our complaints committee, which is made up of one member of the public, who is an appointed person, along with two practising consultants. The complaints committee decides whether there is merit and will either dismiss the case or refer it onward to discipline.

At the referral it goes to an independent lawyer whom we have retained as a discipline counsel, who begins a process of pre-hearing discussions between the member, the member's counsel, and the prosecutor. From there, if an agreed statement of fact and a joint recommendation on penalty can be achieved, it is presented to a different panel of the disciplinary committee—again, a public representative and two practising consultants—who will receive the evidence—

[Julie Dzerowicz, Liberal, Davenport, ON]

Mr. Barker, I think there seems to be a big process. It would be helpful if you could submit it to the committee just for our review.

[Lawrence Barker]

We have a chart for you.

[Julie Dzerowicz, Liberal, Davenport, ON]

That would be very helpful.

Mr. Jade and Mr. Igbokwe, thank you for your presentation.

How are the regulators perceived, and what would be your top three recommendations in terms of changes, as per our mandate here?

[Dory Jade]

Thank you.

What I bring forward here are two recommendations. The first one, and it applies also to the Law Society of Upper Canada, is that the governance aspect of the regulator should not be under the CNCA. I alluded to this in my speech, and it is in the presentation of CAPIC, which is before you. The CNCA is meant to be for not-for-profit organizations' and oriented to the members and charities to preserve their rights. Regulators have very specific mandates to preserve consumer protection of the public. This is where the difference is, and it is fundamental.

The second point we want to bring forward goes back, really, to the Canadian Constitution, whereby immigration and agriculture are shared by the provinces. Therefore, the federal government should really look at the regulations—