Federal Court of Appeal Reaffirms CSIC's Authority to Regulate Consultants

    'Immigration consultants have a valuable role to play in assisting
    individuals... caught up in the immigration system.'
                                        Federal Court of Appeal

    TORONTO, July 21 /CNW/ - In a landmark decision rendered by the Federal
Court of Appeal, the Canadian Society of Immigration Consultants was
vindicated as the "gatekeeper to the profession of immigration consultant(s)".
CSIC will continue its role as the sole regulator of authorized immigration
consultants to enhance consumer protection for current and future immigrants
by ensuring a well educated, accountable and ethical membership.
    'This is terrific news for CSIC with the clear winner being consumers of
immigration services. This decision hopefully ends a long-standing legal
quagmire and allows us to continue the business of regulating the profession
with renewed zest and zeal,' said CSIC's Chairman, John Ryan.
    The Law Society of Upper Canada (LSUC) had taken CSIC, the Minister of
Citizenship and Immigration (CIC) and the Attorney General of Canada to court,
contesting CSIC's authority to regulate immigration consultants. In 2005, the
LSUC, supported by the Federation of Law Societies of Canada (FLSC), brought
an application before the Federal Court challenging CSIC's status as
regulator. That application was dismissed by Mr. Justice Hughes in December
2006. The matter was then referred to the Federal Court of Appeal, again by
the LSUC, who heard the case and rendered its decision on July 18, 2008.

    In summary, the decision revolves around three key issues:

    Are the Regulations which govern CSIC an unconstitutional infringement of
    the independence of the bar?

    Specifically, without deciding the issue of whether the bar is
independent, the Federal Court of Appeal affirmed that CSIC is independent of
CIC and that no reasonable person would conclude otherwise. Indeed, in
acknowledging CSIC as the regulator, the Federal Court of Appeal held that the
government specifically distanced itself from CSIC to ensure independence. It
was ruled that 'it was entirely appropriate for the Minister responsible for
the administration of the immigration system to take the initiative in
designing and putting in place the legal, financial and institutional means of
tackling the serious public policy issues presented by unregulated immigration
consultants' - thus creating CSIC.
    More importantly, the judgment proclaimed that: 'CSIC's governance
structure satisfies any requirement that immigration consultants not be
subject to improper constraints in their representation of clients imposed by
their regulatory body.'
    The second issue dealt with the manner in which CSIC was constituted and
its inherent authority. Specifically:

    Does section 91 (of the Immigration Refugee Protection Act) authorize the
    establishment of a scheme to regulate a profession?

    The Federal Court of Appeal responded affirmatively. The Court indicated
that the Governor-in-Council had delegated her authority, through the
Regulations, to CSIC. The Court recognized that by delegating its functions to
CSIC, that CSIC could address problems quickly. The Court put it this way:

    In short, the advantages of permitting an independent self-regulatory
    body to draw up the details of the scheme, which can quickly respond to
    emerging problems, are sufficiently cogent as to lead to the conclusion
    that section 91 (of IRPA) implicitly authorizes the sub-delegation to
    CSIC effected by the Regulations.

    The third and final question put before the Federal Court of Appeal was:

    Are the Regulations ultra vires (outside of the legal power) as
    authorizing breaches of solicitor-client privilege?

    The LSUC alleged that because the Regulations compelled non-lawyer
employees to become members of CSIC if they wished to advise, consult with and
represent clients on immigration matters, this could become problematic if a
complaint made it necessary for CSIC to follow-up on this employee and request
disclosure of confidential information. The Federal Court of Appeal decision
stated that there is no basis 'in either fact or law' for the Law Society to
be concerned about this and reaffirmed the Regulations.
    Moreover, the Court clearly indicated that law clerks may assist lawyers
provided that their assistance does not take the form of advising, consulting
with or representing clients in immigration proceedings, otherwise, they need
to be members of CSIC.
    'CSIC is extremely pleased with the judgment and hopes that this will put
to rest some of the concerns expressed, while paving the way for a new era of
cooperation and productive relationships with all of our partners and
stakeholders', added John Ryan.

    CSIC was established in 2004 and currently has 1300 members, all
certified immigration consultants. For a copy of the decision or for more
information on CSIC, go to: www.csic-scci.ca.

For further information:

For further information: John P. Ryan, (416) 572-2800 ext. 2223, Toll
Free: 1-866-308-CSIC (2742), jryan@csic-scci.ca, http://www.csic-scci.ca/

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