The Law Society of Upper Canada has successfully lobbied MPs to exempt paralegals from regulation as immigration consultants, a move one lawyer practising in the area calls a “scandal.”
Bill C-35, the cracking down on crooked consultants act that’s currently winding its way through Parliament, is the federal government’s response to a string of controversies involving unqualified and unethical consultants who exploited prospective immigrants to the country.
The bill tightens up the rules on who can charge fees for immigration advice. In the meantime, hearings are underway to find a governing body to regulate consultants and thereby replace the Canadian Society of Immigration Consultants.
While lawyers in all provinces and territories are exempt from the requirements, an amendment adopted at the committee stage of the bill earlier this month adds paralegals belonging to the LSUC to that list.
Sergio Karas, a past chairman of the Ontario Bar Association’s citizenship and immigration section, sees the whole bill as an erosion of lawyers’ territory but finds the law society’s move on paralegals particularly galling.
“I think it’s a scandal because it is invading areas that are traditionally the province of lawyers,” he tells Law Times. “The law society is undermining the role of lawyers.”
According to Karas, only lawyers should be able to advise and represent applicants in proceedings under the Immigration and Refugee Protection Act. “It’s very complicated.
You need to know a lot of case law and what the jurisprudence is. Immigration consultants are not equipped to do that and nor are paralegals.”
At the same time, with 300 active members of the immigration law bar in Ontario alone, Karas says consumers have enough options. “It’s not like there is a shortage of lawyers. You shouldn’t be hard-pressed to find representation.”
After the government announced the legislation in June, the Paralegal Society of Ontario wrote to the federal government to request an exemption given the LSUC’s regulation of paralegals.
“We provide a valuable choice for the public and are recognized as a valuable provider of legal services,” wrote paralegal society president Chris Surowiak.
“Individuals wanting to immigrate to Canada can be assured they will have a qualified representative when they retain the services of a paralegal member of the law society.”
Last month, the law society backed him up, sending Treasurer Laurie Pawlitza to make the pitch for paralegals at the standing committee on citizenship and immigration.
She pointed to the law society’s 200-year track record of successful regulation and discipline and noted paralegals must carry professional liability insurance.
Surowiak tells Law Times the exemption will save paralegals who practise immigration law more than $3,000 per year in fees paid to remain members of CSIC.
“The [paralegal society] and the law society were on the same page with this, and we’re really pleased with the result,” he says, adding he rejects the idea that only lawyers should be able to handle immigration matters.
“We have to show we’re competent in the area of law we practise in, and there’s plenty of courses out there to ensure that paralegals are competent to practise in immigration law. The public is protected using the services of a paralegal. They offer a lot of talent and are quite able to handle immigration matters.”
But if there is a role for non-lawyers in immigration applications, Karas says they should be able to operate only under the strict supervision of lawyers. “In the ideal world, the role of the immigration consultant should be the same as a dental hygienist who works under the dentist’s supervision.
If these people want to practise law so badly, let them go to law school.”
In its representations to the standing committee in October, the Canadian Bar Association also recommended the government allow consultants to work only under lawyers.
Still, Chantal Arsenault, a lawyer at Ogilvy Renault LLP in Montreal and chairwoman of the CBA’s national citizenship and immigration law section, noted the organization hasn’t yet taken a position on the role of LSUC paralegals.
“Immigration lawyers should be the ones providing immigration advice,” she says. “We don’t question that in other fields in terms of who are the best-equipped people to give legal advice. Why should we question it here? Lawyers have many years of training to have the tools necessary to evaluate all of the aspects of the situation, more than just one or two courses on immigration.”
Nevertheless, Arsenault says the legislation’s goal of stamping out so-called ghost consultants, who in some cases charge high prices, make deceitful promises or encourage applicants to lie, is laudable. But CSIC’s past record and the experience of other countries show self-regulation isn’t the answer, she adds.
Since its inception in 2004, CSIC has been beset with problems. Critics have accused it of turning a blind eye to unscrupulous consultants, while Arsenault says its regulation has been ineffective.
In Australia, the government designated a self-regulating body for immigration consultants in the late 1990s. But by 2009, regulation had returned to government control amid allegations of conflict of interest.
“In Canada and other countries, frameworks that have been attempted haven’t been very successful,” Arsenault says. “We are worried that we might be going down the path where we’re just repeating past mistakes.”
The process for appointing a new regulator is also flawed because CSIC is able to reapply to retain its role, Karas says. “The only group who seem willing to take on the regulatory role is CSIC, who are the people at the root of the problem. It’s like putting the fox in charge of the chicken coop.”