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, including the counsel's representation history before the IRB, oral or written reports from other IRB personnel, available background information on counsel's business, and other relevant supporting information, as applicable.
- After carrying out this review, the Registrar will prepare a report indicating what supporting information is available, along with a record of that information. The Registrar will share a copy of the report and the record with the manager, regional Division heads, and the Regional Director and refer the complaint to the Chairperson's delegate, who will carry out the review of the person's right to act as unpaid counsel before the IRB.
- If the Chairperson's delegate considers that there is not sufficient information to proceed further with a review, the review process ends and the Chairperson's delegate will so notify the Registrar in writing. The Registrar will then inform the manager, regional Division heads and the Regional Director that the review process has ended.
- If the Chairperson's delegate considers that there is sufficient information to proceed further with a review, the Registrar will contact the representative in writing, describe the allegations and include a copy of the report and the record, provide the representative with an opportunity to respond in person or in writing, and outline the possible consequences of not responding.
- The Registrar will not schedule any new cases where the representative is acting as counsel, until such time as the Chairperson's delegate makes a final determination in the review. The Registrar will also inform all members presiding over pending cases where the representative is acting as counsel that a review under this policy will take place. The member in each case will decide whether the representative may act as counsel in that particular proceeding or whether to suspend the case, until such time as the Chairperson's delegate makes a final determination in the review.
- Upon review of the record and consideration of the representative's response, if any, the Chairperson's delegate will determine whether or not the individual has, in fact, contravened the Regulations and, if so, whether the individual should be prohibited from representing and appearing on behalf of any person in any proceeding before all Divisions of the IRB for a specified time period with such conditions as imposed by the Chairperson's delegate. The representative will be advised in writing of the decision of the Chairperson's delegate.
- If the Chairperson's delegate decides that a prohibition is warranted, the prohibition will remain in effect for the period of time set out in the Chairperson's delegate's decision or until such time as either the individual becomes an authorized representative as defined in the Regulations, or the person makes a successful application to the IRB to have the prohibition lifted. Information respecting the prohibition will be provided to all IRB offices and Divisions.
- An application to the IRB to have the prohibition lifted must be made in writing to the Chairperson, who may delegate his or her power to decide that application. In the application, the person may present only new evidence that arose after the prohibition was imposed or was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time that the prohibition was imposed.
- Where a prohibition has been issued, if the representative has pending cases before the IRB, the IRB will notify the representative's client(s) in writing, that their representative may no longer represent them before the IRB and advise them of their right to be represented by other counsel.
- As a matter involving a contravention of the Regulations, notice of a representative's prohibition to act as counsel before the IRB will be provided to CBSA, CIC, ICCRC, the Department of Justice Canada and the relevant law society of the province, in accordance with the applicable provisions of the Privacy Act.
Member and public service management are accountable for the implementation of this policy. National procedures will be developed and implemented to ensure that the requirements of this policy are met. Regional offices will organize their operations in accordance with the requirements of this policy and associated procedures.
Program monitoring and evaluation of this policy will be carried out under the direction of the Policy Advisory Committee with the support of the Operations Branch and regional operations of the IRB.
For information contact:
Available in English and French on the IRB's website.
Signed by: Ken Sandhu, Acting Chairperson
Date: September 29, 2011
- Note 1
Students-at-law may represent, advise or consult with a person who is the subject of a proceeding before the IRB, provided that they are acting under the supervision of a member in good standing of a bar of a province or territory or the Chambre des notaires du Québec or ICCRC, who is acting as counsel for the person. In such cases, as described in section 13.1(3) of the Regulations, they are not deemed to be representing, advising or consulting for a fee or receiving other consideration.
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- Note 2
See also footnote 2 regarding students-at-law.
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- Note 3
Includes monetary or other consideration, such as goods or services, provided to a representative for representing, advising or consulting with a person who is the subject of an IRB proceeding.
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- Note 4
Section 167(1) of the Immigration and Refugee Protection Act (IRPA). Section 91 of IRPA authorizes regulations to be made governing representation before the IRB.
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- Note 5
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- Note 6
See Rezaei v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1259 (CanLII), paragraphs 48 and 70-74 regarding the IRB's inherent jurisdiction to ensure the integrity of its processes in respect of representatives appearing before the tribunal to represent clients. See also Wilder v. Ontario Securities Commission, 2001 CanLII 24072 (ON C.A.), paragraph 10, which upheld that the Ontario Securities Commission may reprimand an individual authorized to make representations before it, even if that person is a member of a professional organization such as the Law Society, because its purpose for doing so is not to discipline professional misconduct, but to "remedy a breach of its own Act" and "to control its own processes."
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- Note 7
IRB Form 692 Notice of Representation without a Fee.
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