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Advocacy group says CBA proposal is anti-competitive

|Written By Michael McKiernan
Advocacy group says CBA proposal is anti-competitive
Robert Blanshay says there should be more consultation with groups representing immigration consultants before any switch to permanent supervision by lawyers.

The leader of an immigration consultant advocacy group has blasted a Canadian Bar Association proposal to bring his profession entirely under the supervision of lawyers as anti-competitive.

After what it called “two failed attempts at regulating immigration consultants,” the CBA’s national immigration law section said in a December letter to Immigration, Refugees and Citizenship Canada, or IRCC, that the best way forward was to finally limit the practice of immigration law to lawyers and Quebec notaries. 

Under the CBA proposal, immigration consultants could only perform work for clients “as specialized non-lawyer staff in law firms” under the supervision of lawyers who would maintain effective control over the practice and take responsibility for compliance with law society rules.

Currently, accredited immigration consultants would have two years to find lawyers to work under or partner up with in jurisdictions where regulators allow multi-disciplinary practices.

“This approach would allow immigration consultants to continue working, while protecting the public and maintaining access to justice,” wrote section chairwoman Barbara Jo Caruso, co-founder of Toronto’s Corporate Immigration Law Firm.

“It is a practical and cost-effective solution that requires minimal legislative amendments and avoids the considerable public costs of establishing a new government regulator.”

But Dory Jade, who heads the Canadian Association of Professional Immigration Consultants, says he was taken aback by the self-interested character of the CBA’s suggestion.

“Let’s play fair here. We don’t need a turf war,” he says. “Rather than listening to parties who are trying to get rid of their competitors, we need a factual process.”

In an interview with Law Times, Caruso says the CBA’s submission has nothing to do with competition.

“Immigration is a very important issue globally right now, so the immigration bar is already busy enough,” she says.

“Our desire to see the practice of law restricted to lawyers is not about bringing in more work for lawyers or protecting our turf; it’s about protecting the public and making sure they have access to competent legal advice to help them navigate an area that is very complicated.”

Caruso says CBA members are alarmed by the ballooning number of registered immigration consultants — their number has jumped to more than 4,000 from around 1,600 in 2010 — as well as the volume of complaints lodged with the Immigration Consultants of Canada Regulatory Council, or ICCRC, about members and non-members alike.

“I always say that access to justice is about more than having access to legal counsel at lower or pro bono rates; it’s having access to competent counsel,” Caruso says.

“That’s what is missing right now in the immigration environment. Consultants may frequently provide services at a lower rate than lawyers, but the services are inferior, because they’re not familiar with all the legislative issues that may surround a given situation.”

Robert Israel Blanshay, principal at immigration law-focused Blanshay Law in Toronto, concurs.

“There are many good consultants, but the problem is that there is a massive gulf between them and lawyers in terms of governance, training and education; one that has been growing for years,” he says.

“Maybe it’s time for a refresh, to remind the public why they should want to seek legal immigration services through a lawyer as opposed to a consultant.”

However, Blanshay says there should be more consultation with groups representing immigration consultants before any switch to permanent supervision by lawyers.

“It shouldn’t be rammed down their throats,” he says. “There would be some growing pains, but it’s a promising idea, and I think it’s time for a change.”

In June 2017, the parliamentary citizenship and immigration committee recommended that the federal government strip the ICCRC, a private corporation, of its designation as the regulatory body for consultants, urging the IRCC to replace it with a system of government-approved registration. 

That recommendation united the CBA, the ICCRC and CAPIC in opposition, with each expressing concern that it would place the federal government in an actual or perceived conflict of interest.

The ICCRC only took on its current role in 2011 after replacing the original discredited regulator, the Canadian Society of Immigration Consultants, which had been in operation since 2004.

Jade says both bodies were handicapped by their lack of formal recognition in the Immigration and Refugee Protection Act, but he believes the ICCRC can be salvaged if the federal government elevates its status and grants it powers more akin to those of law societies across the country.

“Self-regulation under federal statute will strengthen ICCRC’s ability to regulate consultants and protect the public, while improving the integrity of the immigration system in Canada,” he says.

According to Jade, consultants have had their reputations unfairly tarnished by unlicensed rogue operators who rip off prospective immigrants by falsely claiming they can help with applications.

He laments the propensity for high-profile media stories to label these offenders “ghost consultants,” claiming it compounds the damage done to him and his fellow licensed professionals.

The group Jade prefers to call “unauthorized practitioners” accounts for around one third of all complaints to the ICCRC, but the regulator is powerless to act against non-members.

“The council would welcome the expanded authority to address unauthorized practice,” said Cindy Beverly, a spokeswoman for the ICCRC, adding in a statement that criticism of the body was unfair, given its young age. 

“As an organization that is six years old, ICCRC is evolving to better deliver on its mission of protecting consumers of immigration services,” Beverly said.

“ICCRC is continuously enhancing the measures in place to protect the public; elevating the understanding of the role of immigration consultants, developing new tools to tackle the problem of unscrupulous consultants and expanding our engagement with key stakeholders.”

In addition, the ICCRC has recently added new staff to improve its investigation and disciplinary processes. 

Although the ICCRC statement labelled the CBA’s proposal to assume responsibility for immigration consultants “short-sighted,” Stephen Ashworth, ICCRC president and CEO, said he remained open to co-operation with lawyers and notaries as Canada attempts to meet Immigration Minister Ahmed Hussen’s plan to welcome almost a million new permanent residents over the next three years.  

“In order to best serve the public, we would welcome a meeting with representatives of CBA to work on a collaborative strategy to positively respond to the minister’s initiative concerning these new immigrants and helping them achieve their dream of being a Canadian citizen,” he said.

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