The change means consultants who are in good standing with the current regulator, the Canadian Society of Immigration Consultants, become members of the ICCRC for a transition period of 120 days. After that, they’ll need to become members in good standing with the new regulator in order to continue to provide services.
Part of the goal behind the legislation that created the new body is to crack down on so-called ghost consultants who weren’t part of CSIC but continued to provide services anyway.
A Canadian Bar Association report on Bill C-35, the legislation that ushered in the ICCRC, noted the previous law’s weaknesses in dealing with ghost consultants under s. 91. “While the previous legislation prohibited such persons from making representations to [Citizenship and Immigration Canada], these unscrupulous individuals would avoid this problem by ‘ghosting’ the applications or by falsely representing that they were not receiving a fee for their services,” immigration lawyers Deanna Okun-Nachoff and Michael Greene wrote in “Are you registered? Consultant regulation after Bill C-35.”
The new s. 91 is more expansive, they noted, by going after direct or indirect representation, advising a person for consideration, and offering to advise or represent in connection with a proceeding under the act.
But as Okun-Nachoff and Greene point out, there are a number of issues and questions related to Bill C-35, some of which affect lawyers.
First, the government modified the legislation to allow paralegals regulated by the Law Society of Upper Canada to work as immigration consultants without becoming members of the ICCRC.
“The problem with this proposal is that it authorizes an additional 3,000 paralegals to provide immigration advice and representation,” the pair wrote. “Unlike with consultants who will be regulated by the national body designated by the minister, the minister will have no ability to control the accreditation or educational standards for such individuals.”
At the same time, provisions dealing with overseas consultants will affect lawyers here.
“Canadian-based lawyers and consultants who utilize the services of overseas agents to recruit clients and assist with applications could be exposed to liability for the actions of those agents,” Okun-Nachoff and Greene wrote. “A lawyer who uses an agent who provides advice or assistance, without adequate supervision of those services by the lawyer, may be a party to an offence under s. 91.”
Penalties under the act include a fine of up to $100,000, two years in jail or both. But questions remain over how effectively authorities will enforce the provisions aimed at ghost consultants.
In addition, the choice of a new regulator is also subject to a legal challenge. CSIC is challenging, at the Federal Court, the government’s decision to appoint the ICCRC as the regulator. Interestingly, several of the current directors of the ICCRC previously served on the board of the Canadian Association of Professional Immigration Consultants (CAPIC). The two organizations had repeated clashes while CSIC had the regulatory function. Phil Mooney, the president and CEO of the ICCRC, was president of CAPIC from 2007 to 2010. Mooney himself took CSIC to Federal Court recently in a judicial review application related to three disciplinary decisions by the soon-to-be former regulator.