Speaker's Corner: CIC a tribunal, paralegals argue

Last week, the Licenced Paralegals Association of Ontario and the Paralegal Society of Ontario addressed the question of the scope of paralegal practice in immigration matters at the Law Society of Upper Canada ahead of a motion considering the issue at its annual general meeting this week.

Gerri Camus, chairman of the association’s governance committee, and I presented submissions along with the research and case law regarding the current scope of paralegal immigration practice. We were asking the law society to clarify Bylaw 4 in relation to the limitations on the scope of practice to work before the Immigration and Refugee Board only.

The limitation on the scope of practice, however, does not derive from the bylaw itself that states paralegals can engage in work “before a tribunal established under an act of the legislature of Ontario or under an act of Parliament.”

Instead, the restrictions on practice before Citizenship and Immigration Canada stem from the frequently asked questions section on the law society’s web site that state: “Paralegals who are licensed by the law society can appear before the Immigration and Refugee Board (IRB) to represent a client or clients in an IRB hearing, and can provide legal services to clients for matters relating to an IRB hearing. Drafting of documents or other legal services practices that are not related to an IRB hearing remain outside of a paralegal’s scope of practice.”

Our submission included a book of authorities inclusive of case law supporting the fact that Citizenship and Immigration Canada is in fact a tribunal.

At the same time, the LSUC’s guidance on its web site on what to consider before seeking judicial review provides some fodder as well: “Examples of federal decision-makers include the Canadian Human Rights Tribunal, the Canadian International Trade Tribunal, a federal government official (such as a visa officer) or a minister.”

Therefore, if we consider the Supreme Court of Canada decision recognizing Citizenship and Immigration Canada as a “specialized tribunal,” our practice in immigration law should go beyond the Immigration and Refugee Board.

Additional submissions and case law will consider the doctrine of paramountcy. On Nov. 1, 2010, former LSUC treasurer Laurie Pawlitza made submissions to the standing committee on citizenship and immigration. Pawlitza told the committee the LSUC could effectively regulate paralegals who work in immigration matters and immigration consulting. Among other things, she said: “At present, they are required to be members of both the law society and [the Canadian Society of Immigration Consultants], which is unnecessary. A number of our licensees have raised this duplication with us. We accordingly respectfully submit that Bill C-35 should be amended to permit the provision of immigration consulting services by paralegals licensed by the Law Society of Upper Canada, as is already the case for lawyers.
We respectfully suggest that it would be in the public interest that paralegals, licensed by the Law Society of Upper Canada, be provided with the support of the law society to provide immigration services, pursuant to federal legislation contained in the Immigration and Refugee Protection Act.”

In my view, then, it is time to take a closer look at the issue of what paralegals can do in immigration law.

For more, see "Time to expand paralegal rights?"

Andrea Sesum is a paralegal and immigration consultant at Legal Solutions Group.

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