Effective Date: September 29,2011
Prepared by: Policy and Procedures Directorate, Operations Branch
1.1 The purpose of this policy is to set out a uniform approach for handling complaints about unauthorized representatives (or counsel) who may, for a fee or receiving other consideration, be representing, advising or consulting with a person who is the subject of an Immigration and Refugee Board of Canada (IRB) proceeding.
1.2 The Immigration and Refugee Protection Regulations ("the Regulations") provide that only an "authorized representative" may, for a fee or receiving other consideration, represent, advise or consult with a person who is the subject of a proceeding before the IRB.
2.1 Authorized representative - Has the same meaning as in the definition in section 2 of the Regulations, namely, a lawyer in good standing with the bar of a province or territory; a notary in good standing with the Chambre des notaires du Québec; or an immigration consultant in good standing with the Immigration Consultants of Canada Regulatory Council (ICCRC).Note 1
2.2 Chairperson's delegate - The person to whom the Chairperson delegates his or her general power to review and determine complaints under this policy.
2.3 Counsel/Representative - 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 receiving other consideration, or an "unpaid representative".
2.4 Unauthorized, paid representative - Any person who is not an "authorized representative", as defined, and who claims to be an "unpaid representative" but who, in fact, is charging a fee or receiving other consideration to represent, advise or consult with a person who is the subject of a proceeding before the IRB.
2.5 Unpaid representative - Anyone who does not charge a fee or not receiving other consideration for representing, advising or consulting with a person who is the subject of a proceeding before the IRB, also known as a pro bono representative.Note 2 A representative who receives any paymentNote 3 for these services at any time is considered to be a paid representative.
3. Background and Objectives:
3.1 A person who is the subject of a proceeding before the IRB has the right to be represented by counsel at their own expense.Note 4
3.2 On April 13, 2004, the Regulations were amended to include the introduction of provisions governing counsel in immigration and refugee matters.Note 5 The Regulations prescribe two types of representatives before the IRB: authorized representatives, who may or may not charge a fee for their services, and unpaid representatives, who do not charge a fee.
3.3 In keeping with the objectives of the Regulations, this policy sets out the IRB's approach to the treatment of complaints against unauthorized representatives who may, in fact, be charging a fee for their services. While it is not the primary responsibility of the IRB to monitor compliance with the provisions of the Regulations that govern counsel, neither should the IRB overlook contraventions of the Regulations. This policy and its associated procedures are intended to provide a means of protecting the integrity of the IRB's proceedings against contraventions of the Regulations. This is based upon the principle that the IRB is master of its own procedures, subject to legislation and the rules of fairness and natural justice.Note 6
3.4 As the IRB's chief judicial officer, the Chairperson is responsible for providing broad direction, guidance and leadership over the IRB's processes. In order to carry out the objectives of this policy, the Chairperson delegates his or her general power to perform a review function with respect to complaints under this policy.
3.5 The Chairperson's delegate is the Assistant Deputy Chairperson (ADC) or Director of the Division in the region in which the facts leading to the complaint arise. In a region where there is no ADC for a Division, the Chairperson's delegate is the applicable Coordinating Member. However, where the facts leading to the complaint arise in more than one Division or region, the Chairperson will appoint a delegate to deal with that particular complaint.
4.1 This policy applies to complaints arising in any of the IRB's Divisions regarding the possible charging of fees, or receiving other consideration, by representatives who have declared that they are unpaid when representing, advising or consulting with persons who are the subject of IRB proceedings.
4.2 This policy builds on existing practices and replaces any documents or portions of documents or statements previously issued by the IRB that conflict with this policy.
5. Policy Statement:
5.1 The IRB supports counsel representation in its proceedings in accordance with the Regulations.
5.2 The IRB has a duty to safeguard the integrity and effectiveness of its processes by ensuring that counsel who appear in its proceedings are, in fact, permitted to represent clients under the Regulations.
5.3 If a person who is the subject of an IRB proceeding is represented by counsel who is not charging a fee or not receiving other consideration, other than an authorized representative, both the person and counsel must provide the IRB with a signed declaration that the counsel is an unpaid representative.Note 7
5.4 Where a member, an employee or a party has concerns during a proceeding that a representative who claims to be unpaid may, in fact, be charging a fee or receiving other consideration, they should raise those concerns on the record. The person who is the subject of the proceeding may be asked whether they understood the declaration that they signed. They may also be asked to confirm on the record whether they have at any time paid, or will pay or otherwise compensate their representative for their services in representing, advising or consulting on their behalf in the proceeding before the IRB. Counsel should then be given the opportunity to address those concerns and the matter may be dealt with during the proceeding, with the member either allowing or not allowing the representative to act as counsel in that proceeding. The member may also determine that the matter warrants review under this policy, and in such a case, the member will follow the steps outlined in section 5.6 below.
5.5 Possible indications that a representative who claims to be unpaid may actually be charging a fee or receiving other consideration, include, but are not limited to:
- frequent appearances as an unpaid representative (of greater concern if combined with any of the additional factors below);
- information contained in IRB records that counsel has charged a fee or received other consideration in the past to represent and appear before the IRB, or currently charges fees or received other consideration for other paralegal services, yet now claims to be acting as an unpaid representative before the IRB;
- relevant information from a source outside the IRB, including: the Canada Border Services Agency (CBSA), Citizenship and Immigration Canada (CIC), the Immigration Consultants of Canada Regulatory Council, the Immigration Consultants of Canada Regulatory Council (ICCRC), or media reports;
- relevant information received from a present or former client of that counsel, or other members of the public; or
- relevant information contained in a file before the Federal Court.
5.6 Any member or employee with relevant information may raise a concern under this policy. The following steps shall be followed in the complaints review process:
- Any concerns that an unauthorized representative may be charging a fee or receiving other consideration should first be raised informally with the applicable member manager or employee manager.
- If the manager is of the view that the concern warrants further review, the matter is referred to the regional Registrar who will carry out administrative functions in the early stages of the review process. The Registrar will gather any additional information, inc