Talk:Conflict of Laws & Parliamentary Supremacy

Immigration Applications & the Paralegal Scope (Down the Rabbit Hole)

As I discussed in my previous article Immigration applications are clearly outside the current scope of the paralegal license. There has been a great deal of misinformation with respect to the role of Parliamentary Supremacy and conflict of laws with respect to the Immigration and Refugee Protection Act (S.C. 2001, c. 27) ("IRPA"), so my goal here is to clear up the confusion.

In the now repealed Immigration Act [Repealed] R.S.C. 1985, c. I-2, s. 69 ("IA") section 30 and 69 of the Federal Act appears to authorize the provision of legal services. Section 30, and 69(1) state:

30. Right to counsel

Every person with respect to whom an inquiry is to be held shall be informed of the person's right to obtain the services of a barrister or solicitor or other counsel and to be represented by any such counsel at the inquiry and shall be given a reasonable opportunity, if the person so desires, to obtain such counsel at the person's own expense.

...

69(1) Right to counsel

In any proceedings before the Refugee Division, the Minister may be represented at the proceedings by counsel or an agent and the person who is the subject of the proceedings may, at that person's own expense, be represented by a barrister or solicitor or other counsel.

The Immigration Act [Repealed] R.S.C. 1985, c. I-2, s. 69 was challenged In 2001 in a case called Law Society of British Columbia v. Mangat, 2001 SCC 67 (CanLII), [2001] 3 SCR 113 the Supreme Court of Canada took a position on the ability of Immigration Act [Repealed] R.S.C. 1985, c. I-2, s. 69 to authorize the practice of legal service. At paragraph 14 the court states:

14 Since she found that a number of the respondents’ activities constituted the unlawful practice of law within the meaning of the Legal Profession Act and were therefore outside the ambit of the Immigration Act, Koenigsberg J. issued the injunction on the grounds that the Immigration Act did not authorize the practice of law. Alternatively, she would have granted the injunction on the basis that the provisions were ultra vires Parliament.

Earler in the same decision the court took a strong position on how conflicts of laws are to be understood,

1 The central issues raised by this appeal are whether ss. 30 and 69(1) of the Immigration Act, R.S.C. 1985, c. I-2, are intra vires the federal Parliament, and whether a provision of the Legal Profession Act (then S.B.C. 1987, c. 25, s. 26; now S.B.C. 1998, c. 9, s. 15) which prohibits a person, other than a member of the Law Society in good standing or a person listed in the exceptions, to engage in the practice of law is constitutionally inoperative or inapplicable to persons acting under ss. 30 and 69(1) of the Immigration Act and its associated Rules and Regulations.

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A. British Columbia Supreme Court (1997), 1997 CanLII 2112 (BC SC), 149 D.L.R. (4th) 736

11. Before Koenigsberg J., the respondents Mangat and Westcoast admitted that they were engaged in the practice of law within the meaning of s. 1 of the Legal Profession Act, but contended that their conduct was sanctioned by ss. 30 and 69(1) of the Immigration Act, which permit non-lawyers to appear on behalf of clients before the IRB. Koenigsberg J. held that the threshold question was whether the Immigration Act authorizes the practice of law. She concluded that the Immigration Act does not authorize the practice of law and therefore does not shield the respondents from the requirements of the Legal Profession Act. She held that, there was no rational connection between the stated policy of the Immigration Act or the requirements that hearings be conducted as informally and expeditiously as possible and the authorizing of untrained, unqualified, or unregulated persons to appear before the IRB representing persons for a fee. She held that although unpaid agents could represent aliens, ss. 30 and 69(1) authorize the paid employment of other licensed counsel, and that only lawyers are licensed in the absence of an alternative licensing regime established under s. 114(1)(v) of the Immigration Act. Relying on the reasoning of the Court of Appeal of British Columbia in Law Society of British Columbia v. Lawrie (1991), 1991 CanLII 659 (BC CA), 59 B.C.L.R. (2d) 1, she stated that the protection of the public is best served by requiring that persons appearing before immigration tribunals as counsel be licensed, and that the objectives of the Immigration Act are not served by authorizing a different class of professional to represent persons. Finally, having regard to constitutional norms, this interpretation avoids creating a conflict between federal and provincial laws.

12. While Koenigsberg J. disposed of the appeal on this basis, she nevertheless considered the constitutional issues in the event that she erred in her conclusion. She accepted that both the Legal Profession Act and the Immigration Act are each a valid exercise of power within the constitutional jurisdiction of the respective governments, specifying that the Immigration Act fell within ss. 91(25) and 95 of the Constitution Act, 1867. Applying the framework set out in General Motors of Canada Ltd. v. City National Leasing, 1989 CanLII 133 (SCC), [1989] 1 S.C.R. 641, she then held that the Immigration Act is a valid regulatory scheme, but one that makes a substantial intrusion into the provincial power with respect to the regulation of law in the province because the creation of an unregulated profession of the practice of law leaves the public unprotected. In her view, without ensuring a standard for the practice of law by creating a licensing body, there was no rational connection between such an intrusion and the stated policy or the requirements that hearings be conducted informally. She concluded that ss. 30 and 69(1) of the Immigration Act were ultra vires Parliament insofar as they authorize the practice of law by non-lawyers.

The Immigration Act [Repealed] R.S.C. 1985, c. I-2, s. 69 was superseded by Immigration and Refugee Protection Act (S.C. 2001, c. 27). In the IRPA there is a similar provision to the one found in the Immigration Act [Repealed] R.S.C. 1985, c. I-2, s. 69. Section 91 (1) of the IRPA states:

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 the submission of an expression of interest under subsection 10.1(3) or a proceeding or application under this Act.

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

(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 the College, as defined in section 2 of the College of Immigration and Citizenship Consultants Act.

The problem with reading section 91(1) in isolation is that it would ignore the fact that Law Society of British Columbia v. Mangat, 2001 SCC 67 (CanLII), [2001] 3 SCR 113 makes it clear that "...ss. 30 and 69(1) of the Immigration Act were ultra vires Parliament insofar as they authorize the practice of law by non-lawyers..." (see paragraph 12). Federal legislation does not and cannot authorize the practice of law where the jurisdiction is vested with the provinces. This issue was brought up again in Law Society of Ontario v Leahy, 2018 ONSC 4722 (CanLII), specifically at paragraph 1 the court states:

[19] The Supreme Court held that to the extent that there was a direct conflict between the BC law and the Federal law, the Federal law was paramount, but that absent a direct conflict the two laws could remain in force and co-exist. In that case, the Court found that there was a direct conflict with respect to one part of the arrangement since the Immigration Act permitted non-lawyers to provide legal services for compensation whereas the LPA prohibited them from providing those services. However, the Court went out of its way clarify that non-lawyer appearances were limited to proceedings before the IRB, and emphasized that the Immigration Act did not permit the practice of immigration law by non-lawyers for any other purposes (including appearances before the Federal Court).

[20] Accordingly, the Mangat case never did authorize a non-lawyer such as the Respondent to practice law in the Federal Court. Now, however, even the limited exception which that case left open for practicing before the IRB has been removed. The old version of the Immigration Act has been repealed and has been replaced by IRPA. Section 91(2) of IRPA now restricts practice before the IRB to lawyers and paralegals who are members of a provincial law society (or of the Chambre des notaires du Quebec), or members of the Immigration Consultants of Canada Regulatory Council (“ICCRC”). The Respondent is not a member of any of those organizations.

[22] In the first place, this is not a conflict that triggers the federal paramountcy doctrine. As the Supreme Court stated in the leading case of Multiple Access Ltd. v McCutcheon, 1982 CanLII 55 (SCC), [1982] 2 SCR 161, 191, federal statutes are declared paramount, and the provincial statute inoperative, where “‘the same citizens are being told to do inconsistent things’; compliance with one is defiance of the other.” That is not the case here. The IRPA does not affirmatively authorize an unlicensed person to provide legal services, whether for free or for a fee.

[23] In a provision that has no bearing on the Respondent’s Federal Court and advice-giving activities, section 167(1) of the IRPA authorizes the provision of unpaid legal services to persons with cases before the IRB. However, that provision must be read in conjunction with section 91(2) of the IRPA which, as set out above, requires that the provider of such services be a member in good standing of a provincial law society or the ICCRC. In other words, section 167(1) of the IRPA clarifies that the requirement that advocacy be done by a provincially licensed paralegal, lawyer, Quebec notaire, or ICCRC member, applies to services provided on a pro bono as well as a fee-paying basis.

The purpose of section 91 (1) of the IPRA sets restrictions as to who may appear or who may provide legal advice or legal services, the IPRA does NOT create an authorization to provide legal advice or legal services.

The Law

Immigration Act [Repealed] R.S.C. 1985, c. I-2, s. 69

30. Right to counsel
Every person with respect to whom an inquiry is to be held shall be informed of the person's right to obtain the services of a barrister or solicitor or other counsel and to be represented by any such counsel at the inquiry and shall be given a reasonable opportunity, if the person so desires, to obtain such counsel at the person's own expense.

...

69(1) Right to counsel
In any proceedings before the Refugee Division, the Minister may be represented at the proceedings by counsel or an agent and the person who is the subject of the proceedings may, at that person's own expense, be represented by a barrister or solicitor or other counsel.

Immigration and Refugee Protection Act S.C. 2001, c. 27

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 the submission of an expression of interest under subsection 10.1(3) or a proceeding or application under this Act.

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

(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 the College, as defined in section 2 of the College of Immigration and Citizenship Consultants Act.

O. Reg. 114/99: FAMILY LAW RULES RULE 4: REPRESENTATION

Definition

4. (0.1) In this rule,

“limited scope retainer” means the provision of legal services by a lawyer for part, but not all, of a party’s case by agreement between the lawyer and the party. O. Reg. 322/13, s. 2 (1).

Representation for a party

(1) A party may,

(a) act in person;

(b) be represented by a lawyer; or

(c) be represented by a person who is not a lawyer, but only if the court gives permission in advance. O. Reg. 114/99, r. 4 (1); O. Reg. 322/13, s. 2 (2).

Interpretation, acting in person

(1.1) Where a party acts in person, anything these rules require or permit a lawyer or other representative to do shall be done by the party. O. Reg. 322/13, s. 2 (3).

Limited scope retainer

(1.2) Clause (1) (b) permits a party to be represented by a lawyer acting under a limited scope retainer. O. Reg. 322/13, s. 2 (3).

Interpretation, limited scope retainer

(1.3) A party who is represented by a lawyer acting under a limited scope retainer is considered for the purposes of these rules to be acting in person, unless the lawyer is acting as the party’s lawyer of record. O. Reg. 322/13, s. 2 (3).

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Service of authorization to represent

(4) An order under subrule (2) or (3) shall be served immediately, by the person who asked for the order or by any other person named by the court,

(a) on the representative; and

(b) on every party in the case. O. Reg. 114/99, r. 4 (4).

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Non-application

(9.1) Subrule (9) does not apply if the party chooses a lawyer acting under a limited scope retainer and that lawyer is not the lawyer of record for the party. O. Reg. 322/13, s. 2 (4).

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O. Reg. 114/99: FAMILY LAW RULES under Courts of Justice Act, R.S.O. 1990, c. C.43, retrieved from https://www.ontario.ca/laws/regulation/990114#BK13>, retrieved on