Citizenship and Immigration Committee on April 3rd, 2017

[David Tilson, Conservative, Dufferin—Caledon, ON]

Well, I'm out of time. He's going to tell me to be quiet.

[The Chair, Liberal, Borys Wrzesnewskyj]

Time is up.

Mr. McKay, go ahead for five minutes, please.

[John McKay, Liberal, Scarborough—Guildwood, ON]

Thanks to all three of you for your testimony.

In another life, I used to practise law, and for my sins, I sat on the paralegal committee. At that time we were wrestling with whether to admit paralegals to the law society in a forum, and ultimately that's what happened. Of course, once we brought them into the administration of the law society, we actually had serious regulation, and the Law Society Act was amended to bring those paralegals into that regulatory regime.

As far as I know, it's working well. Mr. Sarai anticipated my line of questioning. What I don't understand is that in the context of somebody practising law, either as a lawyer or as a paralegal, if they are not licensed, they are prosecuted. The law society, particularly with lawyers, is pretty vigorous about that, and I'm assuming that, with respect to paralegals, it's also pretty vigorous about that, so why is this vast mass of people not falling under that regime?

I apologize that I'm a bit out of date, but nevertheless, it strikes me as such an obvious area of prosecution.

[Leslie Emory]

I guess we could presume that the same vigour isn't present in this system. That's why they're not falling—

[John McKay, Liberal, Scarborough—Guildwood, ON]

Is it that the ICCRC is just not enthusiastic? Is it not properly mandated? Is it inadequately resourced, or is it just a shell of a regulatory entity and not a real regulatory entity?

[Leslie Emory]

It is not sufficiently mandated. That would be my response.

[John McKay, Liberal, Scarborough—Guildwood, ON]

If the ICCRC were mandated in the same way that the law society is with respect to paralegals, I don't anticipate that it will ever go away, but would it at least be reduced so that the worst excesses would go away?

[Leslie Emory]

I believe it would be.

[John McKay, Liberal, Scarborough—Guildwood, ON]

I have a choice between the Law Society of Upper Canada.... I'm picking on Ontario as opposed to any other provinces, but I think that certainly B.C. and Alberta—I can't speak for Quebec—are very enthusiastic about maintaining their regulatory authority. If it came down to a choice between ICCRC and an entity such as the law society, which would you choose?

[Leslie Emory]

Based on what you're saying, I would choose the law society.

[John McKay, Liberal, Scarborough—Guildwood, ON]

I'm inclined to agree with you only because what's the point of reinventing the wheel? We have a regulatory regime—and again I'm picking on the Law Society of Upper Canada—that's been in existence for something in excess of 100 years. It has adjusted and it deals with a lot of the problems that you're alluding to, such as getting retainers or prepaying of fees or failure to file within timelines, or being insufficiently trained or inadequately insured. All of that stuff is governed by the rules and regulations of the law society as it applies to paralegals.

I can't, intellectually at least, conceive of why that wouldn't apply to the people you are talking about.

[The Chair, Liberal, Borys Wrzesnewskyj]

Forty seconds.

[John McKay, Liberal, Scarborough—Guildwood, ON]

I'm good, but it just struck me as such an obvious response, and maybe the law society has a good reason why they don't want to do anything, but that's another issue.

[The Chair, Liberal, Borys Wrzesnewskyj]

Thank you, Mr. McKay.

I'd like to thank the witnesses for their testimony today and their insights. I particularly would like to thank Ms. Dulanas for her poignant testimony and her courage for coming forward before the committee.

With that, we'll suspend for two minutes to allow the next panel to assemble.

[The Chair, Liberal, Borys Wrzesnewskyj]

I'd like to call the meeting to order.

For our second panel today, we have before us the Canadian Bar Association with Ravi Jain, a member from the immigration law section. Also, we have Kathleen Terroux, who is a lawyer with legislation and law reform. We also have from Inter-Connections Canada Inc. Mr. Alli Amlani, who's the president. We have from the Inter Clinic Immigration Working Group, Ms. Jennifer Stone, a staff lawyer with Neighbourhood Legal Services.

Welcome to you all.

The Canadian Bar Association has seven minutes for an opening statement.

[Kathleen Terroux, Lawyer, Legislation and Law Reform, Canadian Bar Association]

Thank you, Mr. Chair, and honourable members. We appreciate your invitation and we're very pleased to be here today on behalf of the immigration law section of the Canadian Bar Association to present our views on immigration consultants.

The CBA is a national association of over 36,000 lawyers, law students, notaries, and academics. An important aspect of our mandate is seeking improvements in the law and the administration of justice, and that's what brings us before you today. Our submission was prepared by members of our immigration law section, which includes approximately 1,000 members practising in all areas of immigration and citizenship law, delivering professional advice and representation to thousands of clients both across Canada and abroad.

With me today representing the section is Ravi Jain, who will address the substance of our comments and also answer your questions today. I will now ask Mr. Jain to continue.

[Ravi Jain, Member, Immigration Law Section, Canadian Bar Association]

Immigration applicants are among the most vulnerable consumers of immigration services. Their first language might not be English or French, and they often lack familiarity with the complexities of Canada’s immigration and legal systems. As a result, they might not be in a position to assess the legitimacy of the advice they receive or the accuracy of the information provided in their application.

For over 20 years, the CBA has said immigration law should be restricted to lawyers or, alternatively, consultants if they’re effectively regulated. We’ve seen the Canadian Society of Immigration Consultants and ICCRC try to regulate consultants, but incompetent and ghost consultants have proliferated and a strong remedy is needed. In the interests of protecting the public, we are now saying that immigration law is a field that should be restricted to lawyers.

It has been reported that ICCRC faces the same problems as CSIC: mismanagement and governance issues, lack of transparency, high directors' fees, and ineffective discipline. There appears to be a division on the board, and as the chair of the Canadian Migration Institute indicated here, feedback from many members is that the complaints department is weak.

In 2010, there were 1,600 CSIC members; now there are over 3,600 ICCRC members. In December 2016, ICCRC reported that an astonishing 1,710 complaints had been made against registered consultants in its five-year existence. In five years, that's almost two complaints for every two members, and misconduct by consultants is likely under-reported due to, as we heard, the vulnerability and lack of sophistication of the clients.

The director of the Toronto legal clinic testified here that most of the complaints at her clinic are about consultants. In striking contrast, case law research reveals for the first time that in the same five-year period there were only 23 reported disciplinary actions against immigration lawyers across Canada. In B.C., there were 1,537 immigration lawyers in 2015, but no reported cases since 2011, during ICCRC's existence. In Ontario, we get a 50% base premium discount because of the low number of claims against immigration lawyers.

Unmeritorious cases waste government, tribunal, and court time and tax dollars. We've seen consultants advise against disclosing family members, applying to restore work permits beyond the 90-day limitation period, fabricating refugee narratives, and missing important details such as common-law relationships. Who suffers? It's buyer beware; we all know this. Therefore, it's prospective immigrants who suffer, even if they thought they had hired a lawyer.

In 2015, Green Party leader, Elizabeth May, said:

I’m deeply concerned about the quality of advice...from immigration consultants...in my work as an MP...quite often I find that the advice given by immigration consultants has made their situations worse.

Why should immigration law be restricted to lawyers? First, the legal profession has established self-regulation in the public interest for 200 years, since 1797. There's a legislative responsibility to investigate each and every complaint so that clients can have true recourse if things go wrong. Immigration law is a complicated, technical area that changes frequently. It intersects with human rights, international, criminal, family, employment, corporate and tax law. You have to keep up to date with legislation, regulations, policy, and operational bulletins, as well as processing trends at visa offices, inland processing centres, and ports of entry.

Immigration lawyers are held to high education and training standards and must graduate from law school, a three-year university program with high admission standards, where skills such as legal research and writing, as well as advocacy skills, are learned. Lawyers apply their education and experience to provide valuable insight into a client's case, which can save applicants both time and money.

The importance of that training was highlighted recently by Paul Aterman, the deputy chair of the immigration appeal division of the Immigration and Refugee Board of Canada in his testimony before you. He said:

Certainly when it comes to the question of litigation, there is considerable scope for improvement when it comes to immigration consultants acting as litigators.

Other countries, such as the United States, protect the public by prohibiting consultants and paralegals. If you're not a lawyer, they call it the unauthorized practise of law and they prosecute. If only lawyers can represent for a fee, there will be less confusion about who's allowed to assist clients with immigration matters. It's about ghosts.

What about accessibility and lawyers' fees? Canada's immigration lawyers are more accessible than ever. There are thousands of immigration lawyers, with ample cultural and linguistic diversity. Lawyers can also provide immigration clients with cost-effective services, often at rates lower than those charged by consultants. For example, it was reported that consultants have been asking graduating students to pay $15,000 to $20,000 to arrange job offers. Lawyers often help clients save money by providing consultations advising not to appeal, not to refile, and law societies can always assess the reasonableness of lawyers' fees.

To promote access to justice, law societies offer public services such as referral services, and lawyers provide pro bono services in times of need. CBA sections sponsor pro bono projects after natural disasters and political upheaval. Recently, we volunteered at various airports across Canada following the U.S. executive orders barring certain foreign nationals and ceasing refugee admissions to the United States.

Why restrict paralegals to do IRB work in Ontario? While they are effectively regulated, the education training centres are not at all adequate, and they aren't getting substantive immigration law training through the law society. They only get it through ICCRC through a streamlined process of becoming consultants. However, ICCRC education training is deficient.

We are aware that MPs are often overwhelmed with questions about immigration. If only lawyers practised immigration law, MPs wouldn't have complaints that applications weren't filed, money-back guarantees weren't honoured, or scams were suggested to the people who are in charge of government fees. MPs should refer cases through law societies that have online referral services and certified specialists lists. The immigration department should make existing local immigration processing centres in key cities accessible to lawyers, such as walk-in counters.

Immigration law is an area where incompetent representation can have dire consequences for the lives of applicants and their families, and the measures taken to regulate representation advice for consideration through IRPR are not working. That's why, to protect the public, immigration law should be restricted to lawyers.

[The Chair, Liberal, Borys Wrzesnewskyj]

Thank you, Mr. Jain.

Mr. Amlani, for seven minutes, please.

[Alli Amlani, President, Don Mills, Inter-Connections Canada Inc.]

Thank you, Mr. Chair, and esteemed members of the committee for inviting me here today.

I followed the committee's proceedings on March 6 and 8 with great interest, and was delighted to hear the testimony this morning. It all comes down to the same thing, particularly the experiences and complaints members of the committee relay from constituents and members of the public about immigration advice they had received.

To put my testimony in context, I've been an immigration consultant since the beginning of 1988, having started with a law firm. I have served on boards of immigration consulting associations since 1992. That includes almost eight years in total as an elected director at both regulatory bodies, as a vice-chair of CSIC, the first body, and as a chair of ICCRC for two years.

I'm familiar, therefore, with the subject. I was a co-founder of the prototype immigration practitioner certificate program, quite a high standard, and that remains the entry requirement for the profession today. Since 2011, I have held the designation of chartered director.

Therefore, the subject you are deliberating on today is very near and dear to me, having built the profession from almost the very start on principles of ethical practice, and provisions of professional services to the needy, who are real people. It is a serious undertaking when people trust you with their and their family's aspirations and dreams, and are willing to pay a fee for good counsel.

Listening to the testimony on March 6, March 8, and this morning, it struck and gratified me that most of it was not dealing with regulated immigration consultants, RCICs, who were the targets of complaints relayed to members of this committee, but rather unlicensed immigration advisers, commonly referred to as ghost agents. This tells me that ICCRC has been largely successful in both elucidating standards of ethical and professional immigration consulting, and holding its members to those standards.

It is certainly true that high-profile cases of immigration fraud, such as the notorious Nova Scotia case of Hassan Al-Awaid who is facing 53 counts under IRPA, are perpetrated not by members of ICCRC but by those who are not licensed to give immigration advice.

In terms of effectively dealing with the problem of unlicensed representatives, this committee heard, on March 8, that CBSA was responsible for taking action against unlicensed consultants and executed its mandate, to a spectacular effect, in prosecutions initiated against Sunny Wang in B.C. and his employees and clients, and against Codina International in Ontario, to just give a couple of examples. They neither have resources nor the inclination to follow up on small-scale immigration fraudsters who are nonetheless more than capable of destroying the lives of their clients.

Most complaints received at ICCRC involve relatively minor disputes over payments and timeliness of service, rather than fraud and abuse of public trust. Also, while ICCRC's complaint and discipline process could be improved by shortening timelines, it is apparent to me that RCICs are not the real problem in the immigration system.

If the real consumer protection issue in immigration consulting is the conduct of unlicensed and unauthorized consultants, the solution lies in taking effective measures against them. ICCRC, as currently constituted, is limited to enforcement actions against its members only. The solution, then, appears to lie in giving ICCRC the regulatory authority to pursue, and take action against, those who are not its members.

If ICCRC were mandated by federal statute to regulate the entire immigration consulting industry in the same way as doctors, dentists, lawyers, and accountants regulate their respective professions, it would be able to hurt the people who actually cause harm to your constituents, the Canadian public, and the integrity of the Canadian immigration system.

I have brought sufficient copies for everyone to read the comments I am about to make. This is supporting documentation. Regulation by federal statutes is not a new idea.

Recommendation two of the report of the Standing Committee on Citizenship and Immigration on regulating immigration consultants of 2008, to which I contributed, clearly proposes independent self-regulation under federal statute. Letters produced during the consultative process leading to Bill C-35 in 2010, from the Law Society of Upper Canada, the Canadian Bar Association, and the Government of Manitoba all support the position that the body should have full regulatory powers. The letter from Manitoba goes on to support the notion that a strong federal regulator of immigration consultants would help bring clarity to jurisdictional issues and promote alignment between the province and the federal immigration regulation.

Once immigration consultants are self-regulated under federal statute, the possibility arises for negotiating agreements with some foreign governments where an equivalent code will most likely exist, thus taking the fight beyond our borders to places where immigration consultants operate with impunity.

All of that said, the fight to protect Canadians, Canadian permanent residents, and foreign nationals who aspire to live, work, or study in Canada, from those who would defraud them by taking advantage of their hopes and aspirations cannot be successfully done by the regulator alone. A concerted effort, encompassing everything from IRCC refusing to accept applications from those who are advised or represented by unlicensed advisers, to increased information sharing among CBSA, ICCRC, and the RCMP, would be an excellent start. However, the effort would be even more effective if the ICCRC had the authority to take action against not only its members, but also the fraudsters who compromise everyone's confidence in this vital facet of Canadian life.

I will close by saying that I do not believe that we can completely eradicate the activities of those who prey on the vulnerable and promote fraud and misrepresentation, but we can certainly put a dent in such activities by making an example of a few.

Thank you.

[The Chair, Liberal, Borys Wrzesnewskyj]

Thank you, Mr. Amlani.

Ms. Stone, you have seven minutes, please.

[Jennifer Stone, Staff Lawyer, Neighbourhood Legal Services, Inter Clinic Immigration Working Group]

Thank you very much for having me here today.

I am an immigration lawyer at a community legal aid clinic in Toronto called Neighbourhood Legal Services, but I am here today on behalf of the Inter Clinic Immigration Working Group, which is a network of lawyers and paralegals in Ontario community legal clinics and student legal aid service societies. Clinics are funded by Legal Aid Ontario to provide services to low-income individuals and disadvantaged communities.

We service clients in a variety of ways, including summary legal advice, representation, public legal education, and law reform activities. Of the 76 funded clinics in Ontario, approximately 30 belong to ICIWG, so we are very aware, in Ontario, of a couple of perspectives: one is that access to legal aid is somewhat of a patchwork and a privilege not afforded to everyone, depending on where you reside; and the other is that, in the clinics that do provide immigration services, we are quite overwhelmed by the demand.

We are very pleased that the standing committee is studying the important issue of the legal, regulatory, and disciplinary frameworks governing and overseeing immigration paralegals and consultants in Canada. I'd like to make three main points, and then I'll move on to our recommendations.

First, we want to highlight for the committee how we are impacted by the chill placed on newcomer-serving NGOs by the very harsh penalties they potentially face should they contravene the law of authorized representatives. I am speaking particularly about section 91 of the Immigration and Refugee Protection Act and section 21.1 of the Citizenship Act, which would provide very serious consequences for anyone who is not authorized, i.e., a member of a regulatory body like a law society or the ICCRC. The penalties include a fine of up to $100,000 and/or two years' imprisonment.

Our position is that in Bill C-35—this “cracking down on crooked consultants act”, the attempt to catch the bad guys in all these stories you are hearing from various witnesses—those provisions have overreached. That is because they provide that anyone who provides services for consideration is captured by these provisions. Since these provisions came into effect in 2011, “for consideration” has been varyingly interpreted by the department.

At first, our newcomer-serving NGO partners were assured that these provisions would not apply to them, because they offer their services for free, in good faith, to the vulnerable communities we mutually serve. That changed a few years ago with some emails that some of the settlement sector partners we work with received from their IRCC representatives, advising them that in fact they were afoul of section 91 of IRPA because “for consideration” was interpreted to include salaries that they received at their non-profit organizations.

More recently, in January 2017, there was an attempt to bring some clarity, but it still appears that it may be only international organizations with service agreements with the federal government, like UNHCR and IOM, that are, in fact, exempt from these provisions.

My second point is to highlight for the committee the reality we experience on the ground, providing immigration services in our communities to low-income clients who cannot afford to pay anyone for their complex legal needs. We note that underfunding of legal aid immigration services in Ontario and across the country puts a big strain on newcomer-serving NGOs. Those NGOs play a key role in the continuum of immigration services for low-income newcomers.

When there was somewhat of a chill placed on our NGO partners as a result of these directives coming down a few years ago, a lot of that work came back into the clinics, and we could not possibly meet the demand. We really cannot meet the demand as it is. When settlement agencies aren't sure if they can provide any information beyond basic form-filling, you create a situation where people really don't know where to turn and, in our respectful submission, you create a situation that leads to people being preyed upon.

Our third main point is to highlight our observation that it is newcomers themselves who face the harshest penalties of all—loss of status, inability to reunite with family, deportation—when a representative, authorized or not, makes a mistake. We believe that, when there is a doubt, it is the newcomer who ought to be given the benefit of that doubt.

We sympathize with the department in aiming to strike a balance to protect vulnerable newcomers from unscrupulous practitioners who exploit the gaps in services. However, the current law and policy framework continue to assume that the vulnerable newcomers living in poverty will simply be able to pay a consultant, paralegal, or lawyer to help them when a complicated legal issue arises. This is blind to the access-to-justice reality for newcomers, and continues to expose newcomer-serving agencies, which operate without a profit motive and in good faith in the service of newcomers, to the overly harsh penalties set out in the law.

We urge the committee to recommend a more common-sense approach that is allied to the financial reality of newcomers in the context of a lack of adequate publicly funded legal services like legal aid clinics. Newcomer-serving NGOs may not always have the legal know-how to get it right, but we believe they operate in good faith and are a bedrock of the operation of Canada's immigration system. The better solution, in our view, would be stabilized long-term funding for that sector, enhancing their professional development opportunities, and ensuring that legal aid funding is adequate to meet the needs on the ground.

We believe that the current atmosphere of fear puts low-income newcomers, desperate for a solution to their problems, into the arms of unscrupulous practitioners, as I've said, borrowing money they often do not have for the service.

We have three sort of flexible, common-sense recommendations for the committee.

[The Chair, Liberal, Borys Wrzesnewskyj]

You have 30 seconds.

[Jennifer Stone]

Okay.

Amend section 91 of IRPA and section 21.1 of the Citizenship Act to ensure that newcomer-serving NGOs are exempted from the harsh penalties, and ensure long-term financial security for newcomer-serving NGOs with professional development opportunities.

Where there is no available legal aid service, a common-sense approach should prevail. Agencies should be able to provide the service if there is no other financially feasible alternative. Acknowledge that it was done to the best of their abilities and in good faith, and if a mistake is made, the newcomer affected by it should be given the opportunity to correct that mistake.

Thank you.

[The Chair, Liberal, Borys Wrzesnewskyj]

Thank you, Ms. Stone.

Ms. Zahid, seven minutes, please.

[Salma Zahid, Liberal, Scarborough Centre, ON]

Thank you to all of the witnesses for providing your testimony before this committee. This is a very important issue, and it has been dealt with more than once by the citizenship committee.

My first question will be for the Canadian Bar Association. I hear all the time from my constituents, and we have heard from several witnesses, including some of the consultants themselves, that most consultants lack the experience and training necessary to represent their clients before the Immigration and Refugee Board of Canada. This can often lead to difficulties, slowing the case process, and it doesn't serve the clients well.

Would you agree, and what specific recommendations would you have to address this issue?