Reasons and Decision

Person Concerned: CHARLES WALLACE

Date(s) of Hearing: N/A

Place of Hearing: Toronto, Ontario (In Chambers)

Date of Decision: 11 October 2011

Panel: Lois D. Figg, Chairperson's Delegate

Introduction

[1] This decision concerns the practice of Charles Wallace (hereinafter "Mr. Wallace") before the Immigration and Refugee Board (IRB or the "Board"). It considers whether Mr. Wallace is in breach of the provisions of the Immigration and Refugee Protection Act, Immigration and Refugee Protection Regulations and the IRB Policy for Handling IRB Complaints Regarding Unauthorized, Paid Representatives (hereinafter "the Policy") and if so, what, if any, sanctions are appropriate to impose upon him.

Background

[2] Mr. Wallace is not a member in good standing of a law society of a province, the Chambres des notaires du Québec, or the Immigration Consultants of Canada Regulatory Council (ICCRC), nor was he a member in good standing of the Canadian Society of Immigration Consultants (CSIC).

[3] Since April 2004, Mr. Wallace has represented 7 claimants before the Refugee Protection Division (RPD), 4 appellants before the Immigration Appeal Division (IAD), and 3 persons concerned before the Immigration Division, purportedly on a "without a fee" basis. Mr. Wallace corresponds with the Board on the letterhead of Wallace & Associates, 66 Duffort Court, Scarborough, Ont. M1B 2R9.

[4] Under the Policy, both the person who is the subject of the proceeding and their counsel must provide the Board with a signed declaration that the counsel is an unpaid representative (section 5.3).

[5] Mr. Wallace has submitted Notice of Representation Without a Fee forms on which he declared that he is not charging a fee for representing the appellant, claimant or person concerned, as the case may be, as their counsel in their proceedings before the Board.

[6] A complaint against Mr. Wallace arose in RPD file TA9-23586, where the claimant brought an Application to Reopen her refugee claim which was determined to have been abandoned. At the hearing of that application on November 17, 2010, the claimant testified that Mr. Wallace had helped her prepare her Personal Information Form (PIF) and filed her PIF for her. He also assisted her with a work permit application. The claimant stated that she had paid Mr. Wallace for these services. Originally, he had asked for $1,000.00 with $500.00 up front. She gave him $500.00, for which she was given a receipt, dated November 16, 2009. In December 2009, Mr. Wallace asked the claimant for an additional $200.00 but she only had $100.00, which she gave him. She did not receive a receipt for the additional $100.00. The claimant stated that she believed this money was for the entire package of services provided including her work permit, her PIF, and for Mr. Wallace to represent her at her refugee hearing. She indicated that she did not read the Notice of Representation Without a Fee form, dated December 14, 2009, which was filed together with her PIF and on which Mr. Wallace is shown as unpaid counsel. She alleged that he had led her to believe that he was a lawyer.

[7] Mr. Wallace also attended the hearing of the application to reopen the claim. He acknowledged that he had assisted the claimant with her work permit and PIF. He acknowledged that he had provided the receipt for the $500.00 but stated that this money was not for representing the claimant at her refugee proceedings but rather for other immigration matters and taking the claimant to various appointments at the immigration office and Social Services. Mr. Wallace stated that he ran an immigration and consulting business and assisted individuals with their immigration and settlement in Canada. He provided advice, did sponsorship applications and answered questions on immigration proceedings.

[8] The Board member who heard the reopening application determined, in a decision dated December 8, 2010, that the money Mr. Wallace took from the claimant was for appearing on her behalf at proceedings before the Board. The member further determined that the claimant was not given an opportunity to be heard regarding her refugee claim due to failings on the part of Mr.  Wallace which included:

1. filing the claimant's PIF late, which resulted in an abandonment hearing;
2. not appearing at the abandonment hearing after telling the claimant he would appear on her behalf to advise the Board that her son was sick, which was the reason for her not appearing;
3. not advising the Board that he would not be able to attend the abandonment hearing as he himself was allegedly not well; and
4. not submitting to the Board an application to reopen the claim after the claim was abandoned, even though he had indicated to the claimant that he would do so.

The member further concluded:

"Therefore, I find that the applicant was misled by Mr. Wallace and that she was not provided with adequate service from Mr. Wallace who she believed was a lawyer who would be representing her at her refugee proceedings. I find that the applicant has provided ample evidence that, due to his behaviour of her former counsel, Mr. Wallace, the applicant was not properly served by her counsel."

The failings of Mr. Wallace, and his inadequate representation of the claimant, resulted in a breach of natural justice which caused the member to reopen the claim.

[9] In view of this information and Mr. Wallace's various appearances as unpaid counsel at the Board, the Assistant Deputy Chairperson of the RPD, Central Region, determined, on January 24, 2011, in accordance with section 5.6 of the Policy, that there was sufficient information to proceed with a review of Mr. Wallace's practice before the Board.

[10] At the direction of the Assistant Deputy Chairperson, the Registrar advised Mr. Wallace by letter dated March 14, 2011, that the Board would be conducting a review of the facts to determine whether he should be prohibited from representing and appearing on behalf of any person in their proceedings before the Board.

[11] Mr. Wallace was asked to provide written representations in response to these allegations by April 4, 2011, and to bring to the Board's attention any additional facts he considered relevant. Mr. Wallace was also requested to provide information about the nature and structure of his organization (Wallace & Associates), how it is funded, the services it provides particularly for persons who have proceedings before the Board, and what fees are charged or requested for those services, as well as supporting financial and other records. He was further advised that the Board may impose a sanction with conditions prohibiting him from representing and appearing on behalf of any person before the Board, and was asked to make submissions as to how the Board should deal with that matter. Mr. Wallace was further advised that if he wished to make representations on his behalf in person, he should so indicate in his written response to the Board and the necessary arrangements would be made for his attendance. Finally, Mr. Wallace was advised that if he failed to reply to the letter, the Board would make its determination nonetheless, based on the information before the Board.

[12] The Board did not receive a reply from Mr. Wallace within the time period specified, nor afterwards. Therefore, the Assistant Deputy Chairperson has proceeded with the review of Mr. Wallace's practice and is making a determination pursuant to the provisions of the Policy, without the benefit of any response from him.

Policy for Handling IRB Complaints Regarding Unauthorized, Paid Representatives

[13] On April 10, 2008, the Board introduced the Policy, which is available online. The Policy sets out procedures for dealing with complaints regarding counsel who are not "authorized representatives" and who may, for fee, be representing, advising or consulting with a person who is the subject of an IRB proceeding.

[14] Section 3.5 of the Policy states that the Chairperson's delegate under the Policy is the Assistant Deputy Chairperson or Director of the Division in the region in which the facts leading to the complaint arise. Since the facts leading to the complaint arose in the RPD, Central Region, as the Assistant Deputy Chairperson of that Division in the Central Region, I am the Chairperson's delegate under the Policy in this case.

Jurisdiction

[15] The issue of whether an Assistant Deputy Chairperson, who has been delegated the power by the Chairperson of the Board, has the jurisdiction to suspend an agent or representative of an individual from appearing before a Division of the Board because of concerns regarding the agent's or representative's conduct, was dealt with in Rezaei.^{Note 1} The Federal Court - Trial Division found that section 58(4) of the former Immigration Act ^{Note 2} granted to the Chairperson the power to delegate authority to an Assistant Deputy Chairperson. Moreover, the Court found that the Board has the inherent jurisdiction to monitor its own procedures in order to ensure integrity, and that in the absence of specific procedures laid down by statute or regulation, the Board has the ability (through the Assistant Deputy Chairperson with the delegated power of the Chairperson) to suspend an agent or representative from appearing before the Board on behalf of another person.

[16] Since the decision in Rezaei, the Immigration and Refugee Protection Act (IRPA) has come into force on June 28, 2002, and the former Immigration Act was repealed. Section 58(4) of the Immigration Act has been replaced by section 159(2) of the IRPA, which reads:

159. (2) The Chairperson may delegate any of his or her powers under this Act to a member of the Board, other than a member of the Immigration Division, except that

1. powers under subsection 161(1) may not be delegated;
2. powers referred to in paragraphs (1)(a) and (1)(i) may be delegated to the Executive Director of the Board; and
3. powers in relation to the Immigration Division may only be delegated to the Director General, Directors or members of that Division.

[17] It is clear that the Chairperson has statutory power to delegate to Board Members, other than Members of the Immigration Division, any of his powers, except the power to make rules as set out in section 161(1) of the IRPA, the power to supervise and direct the work of IRB staff, and the power to appoint and fix the remuneration of experts or persons with special knowledge to assist the Divisions of the Board (the latter two powers may be delegated to the Executive Director of the Board).

[18] I find that the power of the Chairperson to delegate under the IRPA is at least as broad as the power to delegate conferred by the former Immigration Act. Consequently, I find that the decision and reasons for judgment in Rezaei regarding the issues of jurisdiction of the Board to ensure the integrity of its process and delegation of the Chairperson's power continue to be applicable under the IRPA. I further find that the Chairperson has delegated to me his power with respect to this matter in accordance with section 3.5 of the Policy.

Legislation on "Authorized Representatives"

[19] Section 13.1 of the Immigration and Refugee Protection Regulations, which came into force on April 13, 2004 and was repealed on June 30, 2011, provided in part:

13.1. (1) Subject to (2), no person who is not an authorized representative may, for a fee, represent, advise or consult with a person who is the subject of a proceeding or application before the Minister, an officer or the Board.

"Authorized representative" was defined in section 2 of the Regulations and comprised members in good standing of a bar of a province or territory, the Chambres des notaires du Québec or the Canadian Society of Immigration Consultants.

[20] Section 91 of the Immigration and Refugee Protection Act, which was amended as of June 30, 2011, now provides in part:

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 a proceeding or application under this Act.

(2) A person does not contravene subsection (1) if they are

1. 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;
2. any other member in good standing of a law society of a province or the Chambre des notaires du Québec, including a paralegal; or
3. a member in good standing of a body designated under subsection (5).

(5) The Minister may, by regulation, designate a body whose members in good standing may represent or advise a person for consideration — or offer to do so — in connection with a proceeding or application under this Act.

Regulations designating the Immigration Consultants of Canada Regulatory Council (ICCRC) as the regulator of immigration consultants also came into force on June 30, 2011.

Determination

[21] Under the terms of the Policy, the Board has undertaken to actively monitor and ensure that only authorized representatives, or those who do not receive a fee for their services, act as counsel before all its Divisions. The Federal Court has recognized that the Policy imposes an important responsibility on the Board in order to properly fulfil its mandate. Mr. Justice Lagacé stated in the case of Domantay:

[19] … the Court shares the view that there is a duty incumbent upon the Board to verify that those individuals representing clients with whom it has dealings are authorized representatives pursuant to the Regulations, or that they are not receiving a fee for their services. This duty envisions the protection of applicants and the preservation of the integrity of Canada's immigration system. ^{Note 3}

[22] The Policy provides that, in section 5.5, frequent appearances at the Board as an unpaid representative may be an indication that a representative who claims to be unpaid may actually be charging a fee. According to the Policy, the frequent appearances are of greater concern when combined with other factors such as relevant information received from a present or former client of that counsel.

[23] The Board accepts as established the allegation that Mr. Wallace received payment for his services in representing the claimant in RPD file TA9-23586 in her proceedings before the Board. That decision was taken by the Board member after hearing from both the claimant and Mr.  Wallace, and after careful consideration of the documentary evidence, Mr.  Wallace's explanations, and his history of interaction with the claimant. I therefore find that by accepting monetary payment for representing the claimant, Mr. Wallace accepted a fee to represent or advise a person who is the subject of a proceeding before the IRB, contrary to the Immigration and Refugee Protection Regulations in force at the time, and that he directly represented or advised a person for consideration in connection with a proceeding under the Immigration and Refugee Protection Act.

[24] In addition to the complaint from Mr. Wallace's former client, his several appearances at the Board since April 2004, allegedly as an unpaid counsel, raise legitimate concerns about the nature of Mr. Wallace's practice and whether it constitutes a business, rather than providing a pro bono service for refugee claimants. Consequently, Mr. Wallace was asked to provide information about the nature and structure of his organization (Wallace & Associates), how it is funded, the services it provides particularly for persons who have proceedings before the Board, and what fees are charged or requested for those services, as well as supporting financial and other records. To date Mr. Wallace has not provided any response to the allegations or any information and documentation relating to his practice.

[25] Since it is the responsibility of the Board to ensure that the requirements of the legislation concerning authorized representatives are respected in order to protect refugee claimants and safeguard the integrity of Canada's refugee determination system, and since Mr. Wallace has not furnished proof to satisfy the Board that he is providing a pro bono service for refugee claimants he represents before the Board, I hereby order that Mr. Wallace is prohibited from representing or appearing on behalf of any person in any proceeding before any Division of the Board. This prohibition is effective immediately and will remain in effect indefinitely, until such time as Mr. Wallace provides proof that satisfies the Board that he is not accepting consideration for his services in connection with proceedings before the Board. A declaration from Mr. Wallace that he is acting as an unpaid representative is not sufficient proof that he is not accepting consideration for his services in any given proceeding.

[26] In imposing this requirement, I was mindful of the fact that Mr. Wallace is not a member in good standing of a bar of a province, the Chambres des notaires du Québec, the ICCRC or the CSIC, and therefore is not entitled to accept consideration for representing or advising any person in connection with a proceeding or application under the Immigration and Refugee Protection Act. Consequently, this decision should not affect his ability to earn a livelihood or impose an economic hardship on him.

[27] Should Mr. Wallace become a member in good standing of a bar of a province, the Chambres des notaires du Québec, or the ICCRC, this decision will no longer be effective.

Order

[28] Upon issuance of this decision, I direct the Registrars of the Board to notify any persons who are represented by Mr. Wallace that he is prohibited from representing and appearing on behalf of any person in any proceeding before any Division of the Board, effective immediately. The prohibition will remain in effect indefinitely, until such time as Mr. Wallace provides proof that satisfies the Board that he is not accepting consideration in connection with his practice before the Board. A declaration from Mr. Wallace that he is acting as an unpaid representative is not sufficient proof that he is not accepting consideration for his services in any given proceeding.

Signed by:
Lois D. Figg
11 October 2011