Citizenship and Immigration Committee on May 8th, 2017

[Lorne Waldman]

What could be done, for example.... The ICCRC should be doing this, but if they are failing to do it, what I'm suggesting to you is that you could put into the regulations, which authorize the ICCRC to be the supervisory body for consultants, requirements that they do their job, or you could actually put into the legislation a provision that allows a person who has been represented by a consultant to tax their bill. It would be the same process that would be applied to taxing the bill of a lawyer. I think that would be a good measure.

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

Should we have a system of tariffs?

[Lorne Waldman]

Another possibility is to have a system of tariffs, but that's more difficult because we have such a broad disparity in terms of what people charge and the complexity, but there has to be an ability to tax an account. Lawyers are cognizant of that. I've taxed lawyers' accounts and my accounts have been taxed, so I think there should be the same provisions applying to consultants.

[The Chair, Liberal, Borys Wrzesnewskyj]

Thank you, Mr. Waldman and Mr. Tilson.

Ms. Kwan, you have seven minutes, please.

[Jenny Kwan, NDP, Vancouver East, BC]

Thank you very much, Mr. Chair.

I thank both witnesses for your presentations. I very much welcome your comments and your positive suggestions on how to address the critical issue.

Mr. Chair, before I go into further questioning in this area, I would first like to move that the committee return to the debate that was adjourned on April 10, 2017, on my motion that reads as follows:

That pursuant to Standing Order 108(2), that the Committee immediately undertake a study of land arrivals at Canada's southern border, including: the impact of current realities at the border on safety and security of both refugees and Canadian society; the effective management of refugee claims at the border, within the context of Canada's international human rights obligations; and how to ensure an efficient and effective refugee determination process. That this study should be comprised of no less than five meetings; that IRCC department officials be in attendance for at least one of the meetings, that CBSA officials be in attendance for at least one of the meetings, and the RCMP officials be in attendance for at least one of the meetings; that the study be concluded and that the Committee report its findings to the House prior to June 9, 2017; and that Pursuant to Standing Order 109, the government table a comprehensive response thereto.

I understand it is not a debatable motion, Mr. Chair, and I fully recognize that the committee members have rejected going forward with this, or at least holding a debate on this matter so we can make a determination, but it is imperative that we get on with it, so I am going to once again move that we return to the debate.

[The Chair, Liberal, Borys Wrzesnewskyj]

Thank you, Ms. Kwan.

As you noted, it is a dilatory motion, so there is no debate nor are there amendments. We'll proceed to a vote.

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

Let's have a recorded vote, Mr. Chairman.

[Jenny Kwan, NDP, Vancouver East, BC]

I ask for a recorded vote, please.

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

I have a point of order, Mr. Chairman.

We're swamped with Liberals over there. There is an awful lot of Liberals. There are too many Liberals voting. I think most of them should leave.

[The Chair, Liberal, Borys Wrzesnewskyj]

No, Mr. Kang is not voting.

The clerk will proceed with the vote.

(Motion negatived: nays 5; yeas 4)

Ms. Kwan, you still have six minutes and 43 seconds.

[Jenny Kwan, NDP, Vancouver East, BC]

Thank you very much, Mr. Chair. I appreciate it.

I think it's most unfortunate that we can't get on with a debate on the motion that I tabled, a motion that really calls for a study on the critical issue that's before us. If we don't do this, the fearmongering will continue, and it's not good for our country. It is not good for all of us together, in a multicultural society. I implore the government members to think about that, and maybe we can get on with it and do the work that is so very much necessary.

With that, I'll turn my attention back to the study at hand.

As I was saying, I thank both of the witnesses for their comments. I want to follow up with some specific questions.

First, given the situation we have with ICCRC, which frankly on all accounts is not doing its job—most certainly not doing its job properly—the issue has been raised by other witnesses of whether consultants should be self-regulated. I wonder if I could get Mr. Sharma to answer that question. Then I'll turn to Mr. Waldman on it.

[Raj Sharma]

I don't know why there is a presumption that self-regulation is or should be the default. In this regard, I'm going to refer to the Clementi report, which studied the regulation of the legal profession in the United Kingdom. That report came out some time ago. It was critical of lawyers regulating lawyers. I guess foxes sometimes shouldn't be guarding henhouses.

In this regard, I think we need a more consumer-centric model. A previous speaker, Mr. Richard Kurland, a lawyer from Vancouver, suggested that regulation can be done by the government. I see no good reason that immigration consultants require independence. There are strong arguments that the bar needs to be independent of the government, the executive. I see almost no justification for immigration consultants' being self-regulated. Indeed, that regulation can probably be done by the government or by using a consumer-centric model. Again, I would probably refer to the Clementi report and adopt its recommendations here.

[Jenny Kwan, NDP, Vancouver East, BC]

Thank you.

Mr. Waldman.

[Lorne Waldman]

I hear what Mr. Sharma's saying, and I agree that the regulatory model.... This is now the second incarnation of a self-regulatory regime, and both of them have not, I believe, really been effective in regulating consultants. We need to look at other alternatives, but any alternative we look at has to protect to some extent the independence of the consultants. It's true that they're not lawyers, but they are representing people in an adversarial process, at least before the tribunals, so we have to make sure that any other type of regulatory regime protects that independence.

[Jenny Kwan, NDP, Vancouver East, BC]

Thank you very much. You're exactly right; this is the second iteration. To some degree, perhaps self-regulation should be earned. If you can demonstrate that your industry is doing an effective job, then government can consider the self-regulatory model, in which case I would argue that lawyers have done that.

I'll move on to another area: ghost consultants. This is a huge problem. We've heard it over and over again. Should government reject applications done by ghost consultants? Is there a provision or a way whereby we can mitigate the penalty against those applicants, not for the consultants but to provide protection for the applicants?

[Raj Sharma]

The government already rejects applications by ghost consultants if that IMM 5476 form has an individual who's not registered with ICCRC or is not a member of a provincial law society. The government won't process that, so that's already there. The reason they're ghost consultants is that their names don't show up anywhere on the forms.

What I would suggest is a more robust reconsideration regime. We have so many cases where applications are simply refused, where someone is prejudiced by ghost consultants or incompetent advice. I think there should be a mechanism to review an application. I don't think the default should be to simply reject an application. There should be a more thorough, robust reconsideration or review mechanism for certain applications.

[Jenny Kwan, NDP, Vancouver East, BC]

Thank you.

Let me bring it to the next level then. Along those lines, should government create a blacklist so that bad actors in that industry, people who have not delivered their service and so on, for those applications—again not for the person who's making the application for the application to be rejected—that consultant is not able to practice?

[Raj Sharma]

We created a blacklist for employers that weren't complying with the labour market impact assessment or LMO regime, and that blacklist was a blank list for three or four years, so creating a list is only as effective as implementing it and enforcing it.

[Jenny Kwan, NDP, Vancouver East, BC]

Yes. I think that brings us to the question of enforcement, which you also highlighted in your presentation, Mr. Sharma, and the lack of enforcement, if you will, with respect to that.

I wonder if I can turn to Mr. Waldman for a minute and ask him to comment on those points that I've just made.

[Lorne Waldman]

In terms of the ghost consultants, I think it's very difficult to deal with them because we have no way of establishing that they're doing their job or what they're doing. I agree with Mr. Sharma when he said education of the community is crucial. I think more robust enforcement through CBSA when ghost consultants are discovered is as well. I think on that point, that's what we can do.

[Jenny Kwan, NDP, Vancouver East, BC]

Advertising outside of the country—

[The Chair, Liberal, Borys Wrzesnewskyj]

Thank you.

You have two seconds. I don't think we'll get a question in.

Mr. Tabbara, you have seven minutes please.

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

Thank you, Mr. Chair. I'll be splitting my time with my colleague, Mr. Sarai.

My question is for both of you. You mentioned, Mr. Sharma, in your opening statements that anyone over 18 can pass an exam. The exam consists of six months and 320 hours and then they can represent a lot of their clients. My question to both of you is in regard to the U.K. system, how there's a tiered certification that has seven levels of advanced services that immigration consultants can give.

Mr. Waldman, you mentioned also a minimum standard of education. Perhaps you can elaborate on maybe how we can learn from the U.K. system, how we can require a certain level of education and certification for consultants to have in order to perform their services properly and provide better services to their clients.

[Lorne Waldman]

As I've said, I think that ICCRC should be doing it, but if they're not, the government could put into the regulations minimum standards. They could say that in order to be a member of the ICCRC and to provide these services, the consultant must have this education in these areas and this number of minimum hours and pass the exam. If the consultant wishes to do more complex work, like an interview, in addition he must study these following subjects and pass a second qualifying exam. If a consultant wishes to represent someone at the refugee board, a refugee claim, then he has to have...because in each one of these areas there's different information and different skills required.

What's happening now is that you pass the minimum threshold and you can do everything, and that's not acceptable. I think what we need to do is to match the service with the minimum educational requirements, and we can do that by insisting in the regulations that certain minimal thresholds are met before a person gets a licence.

[Raj Sharma]

I'm not saying that the current framework is akin to walking and chewing gum at the same time. It probably allows a consultant to do transactional-level work, application-level work. To get to that next tier, what we really need when we're talking about 320 hours.... For example, I did an entire course on legal research when I went to law school. To get to that next level, we would need substantive legal courses in legal research, tribunal process and procedure, Canadian criminal law, administrative principles, oral and written advocacy, and probably conflicts of law. That's just off the top of my head, but it has to be well beyond six months.

If the paralegals are at two years, it would probably take about two years of substantive legal education to get to the point of tribunal representation or significant, direct, related experience.