Policy on Disclosing Information Regarding the Conduct of Authorized Representatives to Regulatory Bodies

Table of Contents

1. Introduction
2. Context
3. Application
4. Administration
5. Definitions
6. Policy Statement
7. Addressing possible breaches of professional or ethical obligations
   1. 7.1 Process
8. Implementation
9. Monitoring
10. References
11. Enquiries
12. Approval

1. Introduction

This purpose of this Policy is to set out a predictable and transparent approach for IRB personnel to follow when disclosing information about the conduct of authorized representatives to their regulatory bodies, in conformity with paragraph 150.1(1)(c) of the Immigration and Refugee Protection Act (the Act) and section 13.1 of the Immigration and Refugee Protection Regulations (the Regulations). It does not restrict the IRB's authority to disclose information about the conduct of any counsel under any other legal authority.

This Policy replaces any previous processes in place for disclosing information relating to the conduct of authorized representatives to their regulatory bodies.

Concerns regarding unauthorized representatives should be dealt with in accordance with the Immigration and Refugee Board of Canada (IRB)'s Policy for Handling Immigration and Refugee Board of Canada Complaints Regarding Unauthorized, Paid Representatives.

2. Context

The Immigration and Refugee Board of Canada (IRB or the Board) supports the participation of authorized representatives in its proceedings in accordance with the Act. The Act provides that 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. The Act prohibits counsel from providing representation or advice for consideration, except as set out in the Act.

Professional, civil and ethical conduct is expected of all persons appearing before the IRB. While the IRB recognizes that, in the vast majority of cases, counsel demonstrate professionalism in representing their clients, the Board nonetheless has an obligation to ensure the integrity of its processes by promoting high standards of conduct among all those participating in its proceedings, including authorized representatives.

Section 13.1 of the Regulations, set out below, came into force in 2012 to facilitate the disclosure of information relating to breaches of professional or ethical obligations by authorized representatives to their regulatory bodies in accordance with paragraph 8(2)(b) of the Privacy Act.^{Note 1} Section 13.1 of the Regulations states:

13.1 If a member of the Board or an officer determines that the conduct of a person referred to in any of paragraphs 91(2)(a) to (c) of the Act in connection with a proceeding — other than a proceeding before a superior court — or application under the Act is likely to constitute a breach of the person's professional or ethical obligations, the Department, the Canada Border Services Agency or the Board, as the case may be, may disclose the following information to a body that is responsible for governing or investigating that conduct or to a person who is responsible for investigating that conduct:

1. (a) any information referred to in paragraphs 10(2)(c.1) to (c.3);^{Note 2} and
2. (b) any information relating to that conduct, but — in the case of any information that could identify any other person — only to the extent necessary for the complete disclosure of that conduct.

3. Application

The Policy applies to all authorized representatives as defined in section 5 of this Policy.

Counsels appearing on behalf of the Minister are not covered by section 91 of the Act, which governs representation or advice for consideration in connection with a proceeding or application under the Act. As such, they are specifically excluded from the application of this Policy. Conduct issues affecting counsel for the Minister will be dealt with through existing Treasury Board of Canada Secretariat instruments and, where appropriate, through disclosure to a regulatory body.

Unpaid representatives, who are not members of a regulatory body, such as family members, friends and representatives of non-governmental organizations, are expected to represent the person who is the subject of the proceeding honestly, ethically, and to the best of their ability. As their conduct is not governed by regulatory bodies, this Policy does not apply to them.

The Policy is effective on October 16, 2015.

4. Administration

The Chairperson is responsible for the administration of the Policy, including any matters regarding its interpretation.

5. Definitions

Authorized representative – means a person who is described in any of paragraphs 91(2)(a) to (c) of the Act, namely, (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 a body designated under subsection 91(5) of the Act. The College of Immigration and Citizenship Consultants (CICC) has been so designated.

Counsel – includes anyone who represents, advises or consults with a person who is the subject of a proceeding before the IRB. This means either an "authorized representative", who may or may not charge a fee or receive other consideration, or an "unpaid representative".

IRB personnel – refers to Governor in Council appointees and all Public Service employees appointed under the Public Service Employment Act, including both decision-makers and staff, at the IRB. It excludes contractors.

Regulatory body – includes any professional association, organization, or person with a statutory authority for governing or investigating the conduct of authorized representatives. Regulatory bodies include, for example, the CICC​, the Chambre des notaires du Québec, the governing body of the bar of a province or territory of Canada, and some legal aid organizations.

Unauthorized representative – means a person who is purporting to be an authorized representative, and/or is charging a fee or advising a person for consideration – or offering to do so, but is not in fact an authorized representative.

6. Policy Statement

The IRB expects authorized representatives to comply with the standards of professional and ethical conduct required by their regulatory bodies. This generally includes both the requirement that they fully represent their clients by knowing their client's case and the relevant legislation and that they treat the tribunal and other parties with candour, fairness, courtesy and respect. The Board also expects counsel to comply fully with the requirements of the Act, the Regulations and the Rules of the Board.

The integrity of proceedings may be undermined where an authorized representative engages in conduct that constitutes a possible breach of their professional or ethical obligations.

The IRB has various measures to address counsel conduct, in addition to reporting authorized representatives to a regulatory body.

Nothing in these procedures is intended to limit the IRB from employing any measure necessary to ensure counsel conduct does not undermine the integrity and effectiveness of its processes.

7.1 Process

Where IRB personnel believe that an authorized representative has engaged in conduct that is likely to constitute a breach of the person's professional or ethical obligations, or if they believe a counsel may be an unauthorized representative, they should first raise the issue informally with the applicable member manager or employee manager. If the manager determines that the concern warrants further review, they may complete a Referral Report on Counsel Conduct (the Report).

The Report will be submitted to the responsible Assistant Deputy Chairperson (ADC) or Registrar for completion.

The ADC or Registrar will ensure the Report contains  the name(s) of responsible regulatory body (or bodies) and membership number(s) (where applicable), the representative's contact information, the nature of the allegation, case details and relevant documentation, including transcripts, decisions and other information that touches on the impugned conduct.

Once completed, the ADC or Registrar will forward the referral report to IRB Legal Services for advice.

Upon receipt of Legal Services' advice, the ADC will render a final decision as to whether the likely breach of professional or ethical obligations is:

• sufficiently serious to warrant disclosure of the matter to the responsible regulatory body for investigation and resolution as appropriate, where the authorized representative is a member of such a body;
• sufficiently serious to warrant the recommendation of commencement of other measures, for example a "Rezaei" proceeding;^{Note 3} not sufficiently serious to warrant any further action.

If an authorized representative is a member of, or subject to the authority of more than one regulatory body, the matter may be disclosed to all regulatory bodies responsible for regulating the authorized representative's conduct.

If a matter is disclosed to a regulatory body, the IRB will provide written notice to the authorized representative

8. Implementation

Deputy Chairpersons are accountable for the implementation of this Policy in their respective Divisions.

9. Monitoring

Program monitoring and evaluation of this Policy will be carried out under the direction of the Chairperson with the support of the Policy and Procedures Directorate.

10. References

• Immigration and Refugee Protection Act, paragraphs 91(a) to (c), subsection 91(5), paragraph 150.1(1)(c)
• Immigration and Refugee Protection Regulations, section 13.1
• Public Service Employment Act
• Privacy Act, paragraph 8(2)(b)

11. Enquiries

Director, Policy and Procedures Directorate
Policy, Planning and Research Branch
Immigration and Refugee Board of Canada
Minto Place—Canada Building
344 Slater Street, 14th Floor
Ottawa, Ontario  K1A 0K1

Available in English and French on the IRB's Internet site.

12. Approval