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Immigration - Consultants. Caruso v. The Law Society of Ontario
In Caruso v. The Law Society of Ontario (Div Court, 2023) the Divisional Court considered (and dismissed) a JR by an Ontario paralegal challenging the accepted constitutional governage of immigration consultants, specifically whether LSO By-law 4 ['Licensing'] governed the issue as opposed to s.91(2) ['Representation or Advice'] of the Immigration and Refugee Protection Act.
In paras 33-40 and 48-80 the court considers (and decides against) whether Ontario paralegals can act as immigration consultants [which means '(d)rafting of documents or other legal services practices that are not related to an IRB hearing'], particularly in light of LSO Bylaw 4 ['Licensing']:Final Conclusion
[133] The Applicant and Intervenor, the Ontario Paralegal Association, advanced several policy arguments in support of the expansion of the scope of practice of paralegals in the immigration field. The Intervenor, the College of Immigration and Citizenship Consultants, made policy arguments in opposition to such expansion.
[134] It is not the role of this Court to determine whether, as a matter of policy, the scope of practice for paralegals should be expanded to include the processing and filing of immigration applications on behalf of clients. The policy issue has been delegated by the Ontario Legislature to the LSO, the body responsible for the regulation of paralegals. The Parliament of Canada has referentially incorporated the LSO’s regulatory requirements by requiring paralegals to be “members in good standing” of the provincial law society. . Caruso v. The Law Society of Ontario
In Caruso v. The Law Society of Ontario (Div Court, 2023) the Divisional Court considered (and dismissed) a JR by an Ontario paralegal challenging the accepted constitutional governage of immigration consultants, specifically whether LSO By-law 4 ['Licensing'] governed the issue as opposed to s.91(2) ['Representation or Advice'] of the Immigration and Refugee Protection Act (IRPA).
In these quotes the court outlines the IRPA regime regarding what are commonly called 'immigration consultants':Immigration and Refugee Protection Act
[23] Two sections of the IRPA are directly relevant to the legal issues raised in this case. The first is s. 167(1), which provides:Right to counsel
167(1) A person who is the subject of proceedings before any Division of the Board and the Minister may, at their own expense, be represented by legal or other counsel. [24] The “Board” referred to in s. 167(1) is the IRB, which consists of the Refugee Protection Division, Refugee Appeal Division, Immigration Division and Immigration Appeal Division.
[25] Section 167(1) is very similar to the statutory provision – s. 69(1) of what was formerly the Immigration Act, R.S.C. 1985, c. I -2 – considered by the Supreme Court of Canada in Law Society of British Columbia v. Mangat, 2001 SCC 67. Statutory amendments to the legislation in 2011 made significant changes to the statutory regime, and I will return to the significance of those amendments when I consider the Mangat case and its impact on the present statutory regime.
[26] The second relevant section is s. 91(1) and (2) of the IRPA. It provides:91 (1) Subject to this section, no person shall knowingly, directly or indirectly, represent or advise a person for consideration — or offer to do so — in connection with the submission of an expression of interest under subsection 10.1(3) or a proceeding or application under this Act.
Persons who may represent or advise
(2) A person does not contravene subsection (1) if they are
(a) a lawyer who is a member in good standing of a law society of a province or a notary who is a member in good standing of the Chambre des notaires du Québec;
(b) any other member in good standing of a law society of a province or the Chambre des notaires du Québec, including a paralegal; or
(c) a member in good standing of the College, as defined in section 2 of the College of Immigration and Citizenship Consultants Act. [27] Sections 91(1) and (2) were first enacted by Parliament in 2011.
....
Final Conclusion
[133] The Applicant and Intervenor, the Ontario Paralegal Association, advanced several policy arguments in support of the expansion of the scope of practice of paralegals in the immigration field. The Intervenor, the College of Immigration and Citizenship Consultants, made policy arguments in opposition to such expansion.
[134] It is not the role of this Court to determine whether, as a matter of policy, the scope of practice for paralegals should be expanded to include the processing and filing of immigration applications on behalf of clients. The policy issue has been delegated by the Ontario Legislature to the LSO, the body responsible for the regulation of paralegals. The Parliament of Canada has referentially incorporated the LSO’s regulatory requirements by requiring paralegals to be “members in good standing” of the provincial law society.
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