Good morning, Madam Chair, members of Parliament.
My name is Louis-René Gagnon.
First of all, thank you for the opportunity to appear before this committee as an individual.
Let me briefly tell you about my own experience that is directly related to the bill before you today.
I held positions related to policy development, with operational responsibilities at Quebec's immigration department for more than 20 years, including as secretary of the Conseil des relations interculturelles and as director of the Quebec immigration office for the Middle East in Damascus, Syria, from 2007 to 2009. That was during a more pleasant period. I also carried out many missions to select immigrants abroad.
From September 2011 to May 2016, after my retirement from the provincial public service, I taught immigration law at the CEGEP de Saint-Laurent to those wanting to become immigration consultants. Since May 2013, I have held the position that is perhaps most relevant in this case. I am actually a member of the Discipline Committee of the Immigration Consultants of Canada Regulatory Council as a representative of the public. Let me clarify that I am not a consultant. As part of the committee, I have served on more than 250 complaints committees as well as on numerous disciplinary and appeal committees, either as a member or as chair.
I should tell you that I fully support the principle of the bill regarding the College of Immigration and Citizenship Consultants because I believe that the disciplinary system to which consultants must adhere must be based on a solid legal foundation under an act of the Parliament of Canada specifically designed for them.
In addition, I am pleased that subsection 6(2) of the Act respecting the College of Immigration and Citizenship Consultants proposed in Bill gives the college extraterritorial capacity. In my experience, the most serious abuses are in fact predominantly committed abroad. I also welcome section 78, which will allow the college to apply for an injunction to counter the blight of illegally practising the immigration consulting profession.
However, I would like to insist that the various disciplinary panels that will be created under the regulations—which will be approved by the minister—always be composed of two licence holders and a member of the public. A member of the public who is not a consultant is an important guarantee of impartiality. This prevents the image of a professional group whose members would only protect each other or absolve each other of their faults.
I am also pleased that section 9 stipulates that the Official Languages Act applies to the college, since the ICCRC has not always been exactly exemplary in that regard. However, the college will need to be provided with the financial resources required to comply with the legislation.
I consider the governance structure proposed by the bill, which combines both elected and minister-appointed members on the board, to be satisfactory.
I would like to add that, in my opinion, the role of the member of the public is broader than simply defending the consultants' clients. I recently recalled a case where the sentence to be imposed on a consultant who had been convicted of criminal acts was being considered on appeal. To mitigate his sentence, his lawyer said that, in this case, his clients had pushed him to commit those acts, that they too had committed criminal acts and that the public was not involved. However, I remember writing in that decision that the public was actually involved. The public is not limited the clients. A representative of the public must keep in mind the integrity of the Canadian immigration system and look at it in the broadest sense.
I am ready to answer any questions you may have, in French or English.
Thank you, Madam Chair.
Members of the committee, good morning. I have accompanying me today, Mr. Gerd Damitz, who is the past president and co-founder of CAPIC.
On behalf of the Canadian Association of Professional Immigration Consultants, I want to thank the committee for their unanimous bipartisan proposal of federal statute regulation through the Parliament, and acceptance of this proposal. I also want to personally thank you for inviting me and giving me the opportunity to present on such an important matter that belongs to the industry of immigration consultancy.
The proposed college of immigration and citizenship consultants act is a much-needed antidote for a problem that has long plagued the reputation of a respected profession, both at home and abroad. Specifically, its provision of extraterritorial powers against unauthorized practitioners will significantly bolster consumer protection and restore faith in the immigration consulting profession for prospective consumers. For these reasons and many more, CAPIC strongly supports the proposed act.
Before exploring all the points that I want to bring before you, let me reintroduce you to CAPIC. For those members of this committee who were not present before, CAPIC is the sole voice of immigration consultants. Its mission is to act and defend, protect and develop the profession in the best interests of its members.
Over the last five years, we have worked diligently with the Government of Canada to strengthen professional regulation and have advocated for greater disciplinary powers for the regulator. Although satisfied with much of the proposed act, we still have a few points that we would like to bring to your attention. We would ask you kindly to have some amendments on those.
I also want to point out that last Wednesday, the Immigration Consultants of Canada Regulatory Council, from which you had representatives yesterday, has named Queen's University and l'Université de Sherbrooke in Quebec for their graduate diploma program in immigration and citizenship law. This is a milestone in what this committee has recommended in order to increase the education level of entry into the profession.
Let me go to the point pertaining to the solicitor-client privilege, which is consultant-client privilege. The consultant-client privilege is assumed by the Supreme Court for notaries, lawyers and paralegals. In the last seven years, it has become a constitutional right protected under the Charter of Rights and Freedoms. Crucially, such a privilege is not exclusive to lawyers, as both patent agents and paralegals are entitled to it. With consumer protection in mind, the distinction that the privilege applies to the client and not the solicitor renders its omission from the act all the more confounding.
There are three preconditions to establishing solicitor-client privilege: one, communication between the solicitor and the client; two, the seeking or giving of legal advice; and three, the intention of confidentiality. All those have been also brought forward through a legal letter by Professor Peter Hogg, which we would be happy to circulate if need be.
The memo brought by Professor Hogg concludes that the privilege should apply especially and equally to immigration and citizenship consultants and anchor any professional legislation. Indeed, consumers seeking advice should be equally protected when they seek advice from authorized representatives, who most of you would know are of different categories and different regulators.
Proposed section 80 deals with bylaws and regulations, but details are sorely lacking. The issue is the college can and will start doing bylaws. However, under proposed section 80 it only mentions in the act that the college needs to do bylaws or to prepare bylaws. We understand that they will be brought before the Minister of Justice at the end for final ratification or seal. However, there is no guideline. If the guideline is in the regulation, then this point is moot. There is also a concern that the regulator could draft bylaws without respecting the regulation.
In the interests of consumer protection, the reform that has touched on RISIAs, which is the tier regulation or the tier licensing that is in the act, has given RISIAs more powers, which is representation with express entry. RISIAs are only meant to be for representatives on study permits. We would like to recommend under—
Thank you, Madam Chair.
Gentlemen, thank you for joining us this morning.
I will get straight to the issue. The purpose of the proposed legislation is to regulate consultants and protect the public. It also seeks to reassure Canadian citizens about immigration and people applying for Canadian citizenship. The process must be straightforward, honest and principled for persons who are in need or who are applying for family reunification. We know all that.
There are already consultants who provide quality services to those clients. That's the right term, since those people end up being clients. We are talking about creating an ombudsman position or a complaint mechanism on service quality, as in other colleges. However, people in vulnerable situations and in need are afraid to apply and assert their rights.
Can you give me some examples of cases where consultants have helped these people and given them access to all the services to which they were entitled? Some consultants even tell their clients that, if they are not satisfied with the services they receive, they can file a complaint. It's part of the profession.
Mr. Jade or Mr. Gagnon, you can take turns answering.
I appreciate the question because a lot of the bad reputation that came up has been based on wrong statistics that have been disseminated by other groups, which are actually quite easy to verify but that didn't happen. I would like to take this opportunity to ask, if you consent, to clarify that later.
The problem was that there were deficiencies in the effectiveness of the complaints and discipline process. We have to realize that the regulator from two years ago is not the same regulator as today, so when somebody says, “Oh, you should just change the regulator,” it's actually not true.
What you are doing, which I think is a very wise business decision, is to keep the hard shell, and now we have the argument about the soft factors, which is management, and so on. We have to realize that there is a new CEO. We have a new manager of complaints and discipline, and an entirely new, restructured complaints and discipline department. We have a new manager of education, and just a few days ago there was an announcement and the new one-year diploma program was introduced.
When you look at that and you see the recommendations of the committee from two years ago, most of them have actually been fulfilled. Therefore, from our side, I can say with confidence that there is no problem in doing that. In fact, it's a very wise decision.
Thank you, Madam Chair, and thank you to our witnesses. I'm here on behalf of my colleague, Ms. Jenny Kwan. She has asked me to look into a few questions for her.
You are of course all aware of the study in regard to immigration consultants that was completed in 2017. We also heard yesterday that a lot of people who are victimized are those who are amongst the most vulnerable of what would be newcomer groups.
As individuals arriving here, they are coming here in the more precarious or temporary streams of immigration, especially the stream for migrant workers. We have a very complex immigration system, especially for someone who is not used to the laws of our country and the kind of culture we have here. They find it extremely difficult to navigate it by themselves, especially if they don't have fluency in both of our official languages. They need help and advice. That is where you fall in: to provide that.
In many cases, of course, the cost of immigration lawyers is above their ability to pay, but we have heard in many of those cases that once they have signed up with a consultant, they really don't have a choice, even if they feel that something isn't right. They have to swallow those concerns they might have and just see it through.
They've ended up spending a lot of money. They believe they've already arranged employment in Canada. They've done everything the right way. Also, a significant amount of time has passed while they processed through the various stages. I think some of them have noted that there's a fear of.... They don't want to complain or report bad behaviour, because they feel they have everything to lose. I'm talking about the person who is applying. Also, there have been cases where people have tried to speak out, and consultants may have used their position of power to intimidate them and so on.
With respect to the provisions in Bill in clauses 291 to 300, specifically with regard to applicants, I know you had an exchange with Mr. Ayoub about it being a confidential complaints process, but is there anything else that any of you can add about Bill C-97 and provisions that will provide protection to applicants who do speak out?
I will take this, but I can't speak on behalf of the government, you will all agree.
This is twofold. The first one is that the government in the bill has funding in order to create more awareness. I'm sure you have seen that in the bill. However, on another side, we worked with the government in the last five years to facilitate and allow those who come forward.
This is a tricky thing, because the law is made in such a way—and I recommend that the Parliament looks at this section of IRPA—that if you do not disclose properly, then your application may be refused. I understand. I heard Mrs. Kwan speaking about this several times.
We worked with the government in the last five years saying when there are some of those vulnerable people who come forward and mention that—because we didn't have access to unauthorized practitioners—a regulated immigration consultant is involved in something like that, CIC will take this privately. And they have a channel with ICCRC at the time in order to start processing this kind of application or, I would say, complaint or coming from ICCRC internally with both bodies and allowing that individual to continue the process without being affected by the wrongdoing of the regulated immigration consultant.
What I trust may or will happen is because of the statute given to this group or to the new college, they can do the same with unauthorized practitioners. I think this would be a very good step in terms of better protecting the public.
Thank you, Madam Chair, and thank you for the witnesses for being here today.
Again, our number one priority in this committee is to ensure that for individuals who are sponsoring their family members overseas, there's not misleading information and no one is being taken advantage of and that the processes are followed thoroughly.
I want to ask the panel about something. We recommended in this committee to combat misleading information. We mentioned that we wanted to develop education campaigns in foreign markets, have local and ethnic media to educate clients on registered immigration consultants and on the dangers from those who are not registered.
The government heard from us, and they looked at this recommendation and they've agreed with this recommendation.
Is this, first of all, a good step and how is this different from maybe 20 years ago when you mentioned overseas?
I believe, Mr. Gagnon, you mentioned that most of the abuses are happening abroad. If you can comment on those, I'll start with Mr. Gagnon.
Thank you very much for inviting me.
ICCRC, as a new professional regulator with a small budget, did an excellent job in the four years that I was its legal counsel, or one of its legal counsellors, which was 2014 through 2017. I've had no connection with the organization since I retired from practising law at the end of 2017.
ICCRC hasn't had any statutory authority, which meant that it was always open to legal challenges. A lot of those challenges caused delay, which permitted the bad actors to continue to be bad actors during the delay and to profit from unprofessional conduct.
I had been recommending that ICCRC obtain an authorizing statute since I started working with it. I have to say that the proposed law is well drafted, and I would commend everyone involved in drafting it. I don't say this too often, but this is a really good law.
I must caution you still about expecting too much too soon. There are still problems of education and administration that even the best law can't fix immediately. There will still be a backlog of cases that have to be resolved.
It's important to think about ICCRC's budget and size, because it had many critics, but I think those have been based in large part on looking at things like law societies and comparing them to ICCRC. The membership at the present time is about 5,000, according to the ICCRC 2018 annual report, but the Law Society of Ontario, of which I used to be a member, in only one Canadian province, has approximately 50,000 members. The average ICCRC member, contrary to what you may read in the papers, will earn typically about $60,000 a year after expenses and will have a hard time paying the membership fee of approximately $1,800. Meanwhile, the Ontario law society has a budget of $125 million, which is more than 10 times the size of the ICCRC's budget. This has been until recently a reason for understaffing and a serious limit on the ability to deal with the bad guys.
The proposed law is really good. I've attached to my paper a list of things that I prepared back in 2016 as to what should be in such a law and, as I checked off the boxes while reading the law, I think almost everything has been covered.
There could be one improvement I would suggest, which is to give the explicit power for ICCRC to seize property in Canada and perhaps also abroad, with the co-operation of other governments, so they can enforce monetary penalties. There's no point imposing a penalty and then having people say, “Well, I'm just not going to pay it, too bad for you.” The same thing would be true about giving them the authority to order an award of costs to recover investigation costs and legal fees spent in prosecutions. I would suggest, although this is not usual, that the power should be retroactive to cover existing cases.
I want to talk briefly about how members can abuse the discipline process, because, in the course of my work, I've read hundreds of these files of complaints and seen how it works in practice. It's still too easy for members who are being disciplined to abuse the system in a variety of ways: concealment of evidence, increased delay in costs and avoidance of the payment of penalties.
The new law fixes two of the three of those, because the investigators can now enter premises and seize documents, which they haven't been able to do until now. They can also avoid the delay and the adjournments because they have the power to deal with things more expeditiously.
In most professional discipline cases, the parties resolve the issues through negotiation, which usually results in a guilty plea and an agreement to a negotiated penalty.
Typically, 70% to 80% of cases are decided that way, but that has not been the case at ICCRC. That's because after long delays and weak investigative evidence, ICCRC either has to go to a costly hearing or agree to a trivial slap on the wrist with no monetary penalty. Without a law, if a member is finally found guilty of professional misconduct, the member can just refuse to pay the penalty and say “I have no money, goodbye”. Meanwhile ICCRC will have spent a lot of money and time on legal fees and will get nothing back for the victims and nothing back for itself.
The bad actors know that they can get away with paying nothing. They have no incentive to negotiate a settlement and to pay the agreed penalty. The law could be toughened up a little bit to make sure they have the power to do those things.
I would also mention that there are a few members who have sought electoral power at ICCRC by making unsubstantiated allegations of corruption and other such claims. They have repeatedly sued ICCRC and then withdrawn their legal actions before a hearing or before losing in order to avoid paying adverse costs.
Madam Chair, and esteemed members of the committee, thank you for having invited me here today.
My name is Alli Amlani, and I participated in meeting number 55 in 2017, so I'm very familiar with the subject.
I've been an immigration consultant since the beginning of 1988. I've served on various boards of immigration consulting associations since 1992, including almost eight years in total as an elected director at both the regulatory bodies, CSIC, and thereafter, ICCRC— as the vice-chair of CSIC and a chair for two years at ICCRC.
I was also the co-founder of the immigration education program, which is the prototype immigration practitioners certificate program that remains the entry requirement for the profession today.
Having built the profession from almost the very start on principles of ethical practice and provisions of professional services to the needy, who are the real people, I repeat from what I said the last time that it's a serious undertaking when people put their full trust in another with their and their family's aspirations and dreams that could be shattered due to the smallest of oversights or a perpetrated plan.
I have, in the past 31 years, become very conversant and intimately familiar with schemes some people adopt to defraud others and to undermine the integrity of our immigration policy. They exploit people around the world. They are overseas and in Canada and include, but are not limited to, travel agents, student advisers, articulate business people, unauthorized representatives and, unfortunately, authorized representatives as well. I'm very familiar with their practices.
Coming back to the point of today's meeting, looking at clauses 291 to 300, first of all, I'd like to congratulate and compliment the standing committee for having made the 21 recommendations, each one of them well-thought-out and detailed. Some of them were already in practice, but not under statutes. I continue to have concerns about some of the recommendations. A few would need a phenomenal amount of funding—I use the word “extravagant”—or probably appear impractical, and those are the questions that I've heard in the little while that I've been here.
I salute the unprecedented and herculean effort of IRCC to have accepted the key recommendations and brought them to fruition through the budget implementation act and clauses 291 to 300 that we are going to address today. I say “unprecedented” because, as I stated in my last appearance, attempts to implement federal statute regulations as recommended by three previous standing committee reports had not been successful.
I will get down to what my exact concerns are about the present proposal. While we await regulations and bylaws, a few proposed changes need to be further examined or discussed, and if consensus is reached, tweaked. I have already provided a 45-page version that is highlighted and synchronized with my speaking notes, which carry the clause numbers. It'll make it easier if that's how you want to refer to it.
We discussed the compensation fund this morning, and I'm going to address it further. This was part of the contribution agreement with the first regulator body in 2004 that was provided $700,000 in funding and $500,000 as a conditional loan, which was eventually written off. Experience has shown that a target collection of $1 million and maintaining that balance was mostly spent on administration, even while there were no claims made during that period. The funds in CSIC's compensation fund disappeared with the demise of that body, which was replaced in 2011.
In 2011, when the new regulatory body came in, they again started with the requirement of the compensation fund. The contribution agreement mentioned that as part of the condition, but after long, in-depth deliberations by all committees, the ICCRC board and IRCC found it did not serve a useful purpose, and it was subsequently deleted from the contribution agreement in 2015.
Having seen the abuse of professional insurance that all the consultants are covered by—and I don't want to go too deep into what kinds of abuses are there—I feel that it creates an exposure for the college to introduce the compensation fund at the additional costs. Besides the exposure, there are additional costs in terms of administration, human resources, and an undue financial burden on the members in terms of fees.
We must remember that this was one of the reasons that the past regulator was replaced. After 15 years of self-regulation, no claim for compensation has ever been made. In 15 years, no claims. A compensation fund could always be established. My recommendation is that it's too premature to do it right now; it can always be done later if needed.
With regard to board meetings on one of the recommendations, it suggests only one board meeting. I suggest four meetings for accountability. One meeting is an overseeing board, which, by the way, just looks at it. Accountability requires four meetings.
On committees—and this is your last panel of questions—where is the involvement of members? They should be on the committees. My suggestion is that the committees be populated by licensees—
Thank you, Madam Chair and honourable members.
It is a privilege and honour to have been invited here today, and I am very grateful for this opportunity to talk to you today.
For the past 17 years, I have had the opportunity to help thousands of immigrants come to Canada to study, to work, to immigrate and to bring partners and spouses from overseas. I watched as our very young profession grew and overcame challenges, starting with Mangat in the Federal Court, which allowed us to practise in immigration and citizenship, to where we find ourselves today with your committee.
The work that your committee does is vital. Critical issues were raised and needed the right solution. Time will show that the most worthwhile outcomes will have been realized as a result of your questions and concerns focused in this room. As public protection is centre in your hearts, the recommendations from the Honourable Minister , the department and the course proposed in Bill are solid, important, timely and the right path to follow.
For practitioners like me, listening to others refer to us RCICs in the same breath as unauthorized agents, recruiters and those who prey upon good, simple folk overseas was quite hurtful. We found ourselves easy, unwitting targets for those who spin, editorialize and promote their own agendas at our expense. Many in this room have said that this is the third kick at the can for the self-regulation of our profession.
Let's examine the facts.
The first regulator, CSIC, appeared on the scene with little due process. They registered as a private corporation for some reason, and when they left, the key perpetrators absconded with a compensation fund of approximately $1.5 million as their parting gift to themselves. The resignation letters of the first directors who jumped ship were the canary in the coal mine, hinting at what the members were in for next. No sane person could ever lay claim to the fact that this was a legitimate regulatory body that had been struck, because our own members were persecuted, oppressed, extorted and denied any due democratic process.
Too many years later, with a lot of abuse in between, Jason Kenney was our ghostbuster, for which I personally am still very grateful. ICCRC was chosen as the successful bid for the new regulator. If you had the chance to attend the first meeting, every single announcement made by Merv Hillier was met with standing applause. It was like the whole group of us had been taken out of a dark coal mine, and we were taking our first breath of fresh air and seeing the sun for the first time in a decade.
Many years on, the flaws of the current model itself are beginning to show: a regulator that had limited resources and no mandate or authority to be able to curtail the tide of unscrupulous practitioners overseas.
Internally, the complaints and disciplines process has become strained and backlogged. The public and our critics began to heap blame on the underfunded fledgling regulator for things they had no control over, responsibility for or sufficient resources to fix. It was impossible to win in the court of public opinion with this structure. Those with their own agendas added spin to discredit good, honest practitioners and the regulator.
With the proposed changes before you now to the regulatory structure, authority, and finally coming under federal statute, ICCRC transitioning into the new college will be able to fulfill the mandate of public protection.
It is unfair to compare a regulator founded in 2011 to the Law Society of Ontario, which was founded in July 1797. A lot can be said for having a 222-year head start. Even the CBA was founded in 1896 and currently has over 37,000 members. That rich history creates a lot of strength in organizational and educational integrity, resources and deep pockets to be able to police those unauthorized to practise, resources that were simply never available to ICCRC. If the historical roles were reversed, I can only imagine that lawyers today would be no further ahead in stemming the tide of overseas sharks than we are today.
I have been blessed with great teachers over the last two decades, including Lorne Waldman, Barbara Jackman, Stephen Green and Chantal Desloges, who was supposed to be here this morning, in their many CBA and law society CPD events and teachings at Seneca. Phil Mooney, Gerd Damitz, Lynn Gaudet, Alli Amlani, who is beside me today, Camilla Jones, Bruce Perreault and numerous other regulated consultants who are skilled, ethical and compassionate practitioners were extremely generous in their sharing of knowledge and best practices and stand as equals alongside our colleagues at the immigration bar.
Whether lawyer or consultant, our most precious gift is our reputation. Those with impeccable character are celebrated far and wide. As for those who undertake sharp practice, their reputation precedes them, as Buddha said, like the shadow of the wheel of an ox cart.
There is an elephant in the room: the sheer vast expanse of unauthorized, unscrupulous agents and recruiters overseas and internationally. It is important to be fair in examining what would truly put an end to this dark shadow and the blight on the immigration profession. Scapegoating our regulator for decades-old overseas issues is like having expectations of emptying the entire Pacific Ocean with a teaspoon.
There is also a boy who cries wolf, who has already presented to you at this committee and will be presenting again. Their earnest attempts to huff and puff and blow our house down are as transparent as they are. They now believe their own stories, their own grievances, the grievances that are held tightly, like a lump of coal burning in their own hands—
Yes, I think all the members of Parliament in this room have had constituents come to them on immigration issues and talked about incompetent lawyers and incompetent consultants, and the lawyers and the consultants have charged outrageous fees.
Mr. Roman gave a presentation on bad apples—to use his words—and Mr. LeBlanc touched on that as well. As I understand it, in the legal profession there can be complaints by the clients, the opposing counsel, the judge or the hearing officer to the law society: conduct unbecoming a lawyer, incompetence, negligence, all kinds of things, and the law society then deals with that. They contact the lawyer who has been complained about. They see whether there's a fair argument because some clients just call because they didn't like the result and they blame the lawyer. That's the way it is, and the same thing with consultants, I'm sure.
If it gets beyond that, they have a hearing and those hearings—I've never attended one but I've sure read about them—are dreadful. You're raked over the coals. You can be suspended, disbarred, fined. They can have their pound of flesh if they wish.
Mr. Roman, you got into this. There doesn't seem to be a similar process—and I realize, Mr. LeBlanc, you talked about the history of consultants and lawyers. I understand that, but there doesn't seem to be a similar process before or now with respect to how we deal with consultants the way the legal profession deals with lawyers.
I'd like Mr. Roman to start, followed by Mr. LeBlanc followed by Mr. Amlani.
Madam Chair and members of the committee, thank you for inviting me back to be a witness at CIMM.
As you know, I'd like to focus my discussion on division 15, the application for continuance in proposed subsection 84(1) and proposed paragraph 85(7)(g), with respect to ICCRC.
ICCRC has been run since its inception by a group of insiders drawn from the CAPIC lobbying group. They previously ran CSIC and are positioning themselves to attempt to run the new college via the application in continuance.
At the last CIMM meeting, in 2017, we heard that immigration consultants were afraid to report anything to ICCRC for fear of putting their Canadian status in jeopardy. I submit that the majority of immigration consultants, immigrants themselves, feel the same way about standing up to this regulator, putting their licences in jeopardy. There is fear in the membership. Voting rates corroborate this and have plummeted more than 50% in the last three years as members take cover.
Members have watched ICCRC insiders and the CAPIC lobbying group work together as one, with systematic undemocratic actions, abuse of powers and fundamental violations of the act.
For instance, the Canada Not-for-profit Corporations Act, in its subsection 128(8), and ICCRC's own articles of continuance state in part that “the total number of directors so appointed may not exceed one third of the number of directors elected at the previous annual meeting of members.” The membership votes on six directors each year. At most, two may be appointed without violating the act.
So how did ICCRC do? In 2016-17, ICCRC appointed nine. With those unlawful appointments, there was still no quorum for the entire year. In 2017-18, they appointed six directors, largely a double violation. In 2018-19, ICCRC has appointed three directors so far and incredibly held this out to the membership as one of them “winning” his election, despite the fact that he was not even on the ballot.
The underlying notion of these directors' appointments originally took root when the idea that the second-place finisher in an election should win was eagerly adopted by the board of directors. Of course, since all of their incumbent friends lost in the 2016 election and were in second place, it was obvious self-dealing.
There are laws that apply to Canadians but apparently not to the privileged ICCRC-CAPIC insiders. They arrogantly and unilaterally stripped the membership of their rights, violated the act at least 86 times and calculated that nobody adversely affected would take time to read the act.
ICCRC was asked numerous times by me and others but failed to call mandated special general meetings of members under the act pursuant to subsection 132(2). Instead, ICCRC culled its bylaws, and they were not even voted on at the board levels, so they continued to fill vacancies with their CAPIC friends, deliberately attempting to sidestep the act and remain in power.
Now ICCRC and the CAPIC insiders want the minister to approve its continuance while they're in default of the act and their own articles of continuance transitioning to the college. ICCRC and CAPIC will try to blame me for many of the shortcomings, but I was not a director for most of these appointments, as I was unlawfully removed by board trial in a breach of parliamentary privilege and against the act, sections 131 and 132, whereby only members who elected me can remove me. Nor was I there for the current quid pro quo hiring of the current ICCRC CEO, after he apparently helped quash formal CPA Ontario complaints, where he was then the registrar.
I believe the ICCRC financial statements fail to follow accounting standards at multiple places. The audited financial statements did not include members of the public on the audit committee, as required by the act in subsection 194(1).
Merv Hillier, CPA and former ICCRC director and the subject of my CPA Ontario complaint, signed and dated in writing a statement in which he said he was going to use all of his power and influence to sway the outcome of the CPA Ontario investigation, being past president of that organization.
The core competency of the ICCRC investigation team was already given to a small, third party, private corporation run out of a residence and not provided for in the ICCRC bylaws—it was indeed explicitly denied by Mr. Hillier at the 2016 AGM that it even existed—while the entire board and officers looked on in approving silence. This is essentially the same management that will be running the college.
ICCRC's registrar, Mr. Barker, was running interference by answering questions for two other ICCRC officers in a discipline complaint investigation, and he provided evidence to an investigator, Mr. Atkins, that was taken without question. Yet when the owner of the third party investigation firm, Ms. Kewley, was asked about one of the four investigators working out of her home for years, she stated that she did know who Mr. Atkins was. Are investigators who may not exist a problem?
Every discipline or appeals decision made at ICCRC is invalid under section 158 of the act, because the committee making the decisions did include a member of the public, and asking to adjudicate it in Federal Court.
The last time we were at CIMM, we were here trying to figure out why immigration consultants who acted badly were not being disciplined. ICCRC blamed those consultants as the real problem and pointed at the statute as the solution, and yet certain board members were helping to train as many ghost consultants as they could for a fee. To keep their discussions out of the public view and plot these things, ICCRC insiders make extensive use of the CAPIC chat room.
Shortly before the media announced the call, I had just filed an application with the court to dissolve ICCRC and CAPIC for their abuse of powers and for activities that fundamentally changed the members' rights. Ironically, all of these unlawful appointments, this forgoing of proper notice and this skipping of special general meetings are grounds under the act to have ICCRC and CAPIC dissolved.
It is a big deal. If I'm successful in my application, it may mean that the college will get shut down, and ICCRC will be allowed to transition to it under paragraph 85(7)(g). That's not my intention at all. To be clear, the college is a terrific idea, but having any ICCRC or CAPIC director and/or officer running the college would create corruption, deceit and abuse of powers. There's no upside to transitioning the council.
Why risk the college at all? We should make a clean break now. Besides, ICCRC already skipped 19 special general meetings with members. With all of these unlawful appointments and my removal, why do they deserve one now? I believe that they will surely try to manipulate the process. Moreover, I sent a letter to the ICCRC board officers about a month ago about all of this, and not one of them was moved.
Being a self-regulating organization is nearly the same as being a monopoly, except for the fact that self-regulation includes the power of law. Awarding ICCRC and CAPIC with further powers is downright dangerous to Canadians and Canada, in my opinion. Those who abuse a little will abuse much. How much would it embolden ICCRC and CAPIC to do even more unlawful things if they are rewarded after these revelations?
If a new broom sweeps clean, this same group of individuals and their friends will finally be able to tap into the unlimited resources—
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—
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.
We heard yesterday that they're going to use some of the VACs as well to try to spread the message, but obviously one person in a country such as India is not a huge amount of resources.
My submission on behalf of the Canadian Bar Association last time I was here was that when you just say that only lawyers can represent for a fee, it's such a simple message that you could put it on a form. You could put it on a form in multiple languages so that people understand.
People unfortunately don't get that they're hiring people who are calling themselves lawyers, or maybe they're calling themselves people who are authorized to practise overseas as ghost consultants. Maybe they're saying, “Don't worry about it; I'm a travel agent and I can do this”, or whatever.
If the message is really that only lawyers can represent for a fee, it's a very simple message and you can say, “You can look up your lawyer”, and even provide a link.
It could even be right on the forms. That's the best way to deal with the ghost consulting issue, otherwise what's going on now and propping up this whole thing is going to be here for years. For years and years, we're going to have this ghost consulting problem. You're never going to get rid of it otherwise.
It's a very difficult problem, because then you're going to have people who are going to make these complaints against consultants because they think they can get an open work permit out of it, even when the consultant may not have actually done anything wrong. You'll just go down this path. If there's a clear example, fine.
I'm just saying that the better solution is to just say that only lawyers can help these people because the complaints.... It's a false equivalent. I keep hearing about how there are bad lawyers, too. If you look at the period from 2011 to 2016 in British Columbia, do you know how many disciplinary measures there were against lawyers? This was the time when CSIC was in existence, from 2011 to 2016. Zero. There were zero disciplinary matters in B.C.
Yes, there are some bad lawyers who, through greed, or apathy, or whatever, make some mistakes, just like there are some bad doctors and some bad engineers, but they're few and far between. You can't compare them.
Yesterday we heard there are 350 complaints, and the person from the disciplinary committee said that of the 350 a year only 2% take up 60%. Okay, so let's take that off. What's the math? It's 140 a year. That's only reported. You have to understand; I see these people every day and 99% don't want to proceed because they say, what's the immigration benefit for me? What am I getting out of this? They don't want to complain. You can imagine the volume of harm you're talking about. That's what motivates me on this issue.
It's disappointing to me. I look at the witnesses here and yesterday, and I just think that I'm a lone voice. What motivates me is just seeing, day in and day out in my practice, so many people who are hurt. I think there are some good consultants who try to be diligent—I'll say that on the record—but they can partner with lawyers like they currently do. They can work with lawyers and law firms. They can rain-make and bring business in. They can do marketing initiatives. They can benefit from the reputation of a law firm that can carry their practices forward. They can work together with lawyers.
There is a value. It's not like WebMD. You can't just go to CPDs for five years and then say, okay, I'm just as good as a lawyer. It doesn't work that way. Lawyers are trained to interpret statutes. They don't just go to the website. There's a system of ethics that's ingrained in us over three years in law school and beyond.