Practice Notice — Allegations Against Former Counsel

Purpose

1. This Practice Notice outlines the steps to be followed at the Immigration and Refugee Board (IRB) where a person who is the subject of an IRB proceeding (the person) alleges that their former counsel did not provide adequate representation in that proceeding or in any previous proceeding.
2. In this Practice Notice, the term “inadequate representation” includes professional incompetence, negligence, and other improper conduct.

When to apply this Practice Notice

3. This Practice Notice applies to proceedings in each Division of the IRB. The IRB consists of the Refugee Protection Division (RPD), the Refugee Appeal Division (RAD), the Immigration Division (ID) and the Immigration Appeal Division (IAD).
4. This Practice Notice applies where the person’s former counsel is a lawyer, immigration consultant, or other person who is entitled to represent a person for a fee or other consideration at an IRB proceeding.^{Footnote 1} In other cases, a Division may choose whether or not to apply the procedures in this Practice Notice.

Procedures

Steps to take when an allegation is made before a proceeding is completed

5. Where the person intends to make allegations against their former counsel, it should be done as soon as possible to avoid delays in their proceedings, following the steps outlined below.
6. Where the person alleges that they have been inadequately represented by their former counsel, the person must first provide former counsel with:
1. a written statement containing the allegations, or in the case of an appeal to the RAD, a copy of the Appellant’s Memorandum or other document in the RAD proceedings that contain the allegations;
2. a written notice that former counsel has ten days after receiving the allegations to provide a written response to the person, to the applicable Division, and to the Minister (if the Minister is a party to the proceeding);
3. a signed authorization releasing any privilege, including solicitor-client privilege, to the extent necessary to allow former counsel to respond to the allegations; and
4. a copy of this Practice Notice or information describing where this Practice Notice can be found on the IRB website
7. The person must then provide to the Division a copy of documents (a) to (c) above, as well as proof that the documents (a) to (d) above have been provided to the person’s former counsel.   
8. Former counsel who intends to respond to the allegations must provide a written response to the person, to the Division, and to the Minister (if the Minister is a party to the proceeding), no later than ten days after receiving the allegations.
9. The person may provide a written reply to the Division, accompanied by proof that this reply was first provided to former counsel and to the Minister (if the Minister is a party to the proceeding). The written reply must be provided no later than five days after the person received former counsel’s response.

Steps to take when allegations are made in an application to reopen a case

10. If a case is completed, an application to reopen a case must be made using the steps set out in the rules that apply to the Division, namely, the RPD Rules,^{Footnote 2} the RAD Rules,^{Footnote 3} the ID Rules^{Footnote 4} or the IAD Rules.^{Footnote 5}
11. Where the person alleges that they have been inadequately represented by their former counsel, the person must first provide former counsel with:
1. a copy of the application to reopen;
2. a written notice that former counsel has ten days from receipt of the application to provide a written response to the person, to the Minister, and to the applicable Division;
3. a signed authorization releasing any privilege, including solicitor-client privilege, to the extent necessary to allow former counsel to respond to the allegations; and
4. a copy of this Practice Notice or information describing where this Practice Notice can be found on the IRB website.
12. The person must then provide to the Division a copy of documents (a) to (c) above, as well as proof that the documents (a) to (d) above have been provided to the person's former counsel.
13. Former counsel who intends to respond to the allegations must provide a written response to the person, to the Division, and to the Minister no later than ten days after receiving the allegations.
14. The person may provide a written reply to the Division, accompanied by proof that this reply was first provided to former counsel and to the Minister. The written reply must be provided no later than five days after the person received former counsel's response.

Other procedures that may apply

Extension of time

15. An application for an extension of any time limit in this Practice Notice must be made in accordance with the rules of the applicable Division, with any necessary changes, including that the applicant is not required to give evidence in an affidavit or statutory declaration.^{Footnote 6}

Complaint to regulatory body

16. If the person has made a complaint about their former counsel to a provincial law society or other body that is responsible for governing or investigating counsel conduct, the person must provide the Division with a copy of the complaint made. The person must also immediately inform the Division of the status of that complaint, continue to notify the Division of any changes to the status of the complaint, and provide the Division with a copy of any decision regarding the complaint.

Changes to procedures

17. A Member of the Division may give directions or make orders changing the requirements of this Practice Notice in any proceeding, in order to make the proceeding fairer or more efficient.

Effective date

This Practice Notice comes into force on September 10, 2018.

Signed on August 27, 2018

Richard Wex
Chairperson, Immigration and Refugee Board of Canada