Date: 20080718
Docket: A-57-07
Citation: 2008 FCA 243
CORAM: SEXTON
J.A.
BLAIS J.A.
EVANS
J.A.
BETWEEN:
THE LAW SOCIETY OF UPPER CANADA
Appellant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION,
THE CANADIAN SOCIETY OF IMMIGRATION
CONSULTANTS AND
THE ATTORNEY GENERAL OF CANADA
Respondents
and
FEDERATION OF LAW SOCIETIES OF CANADA
Intervener
REASONS FOR JUDGMENT
EVANS J.A.
A. INTRODUCTION
[1]
This
appeal concerns the validity of the scheme introduced by the federal government
in 2004 to regulate immigration consultants. Does the body created to regulate
immigration consultants lack sufficient independence from the Minister of
Citizenship and Immigration (Minister), and does the scheme set up inevitable conflicts
between the regimes regulating consultants and lawyers? Or is the self-regulatory
regime established by the Regulations a legitimate response to long-standing public
concerns about incompetence, the charging of excessive fees, and other unscrupulous
practices, among previously unregulated immigration consultants?
[2]
These
issues come before us on an appeal from a decision of the Federal Court (2006
FC 1489), in which Justice Hughes dismissed an application for judicial review by
the Law Society of Upper Canada (LSUC) for a declaration that the Regulations
Amending the Immigration and Refugee Regulations, SOR/2004-59 (Regulations),
which implement the regulatory scheme, are ultra vires. LSUC is
supported by an intervener, the Federation of Law Societies of Canada
(Federation), which is particularly concerned that the scheme puts at risk the
confidentiality of privileged communications between lawyers and their clients.
The Minister opposes the appeal, as does the Canadian Society of Immigration
Consultants (CSIC), the body created to regulate immigration consultants.
[3]
In my
opinion, the Regulations neither violate the constitution, jeopardise
lawyer-client privilege, nor otherwise exceed the broad legislative power
delegated to the Governor-in-Council by the Immigration and Refugee
Protection Act, S.C. 2002, c. 27, section 91 (IRPA). Accordingly, I would
dismiss the appeal.
B. FACTUAL AND LEGAL BACKGROUND
(i) Before regulation
[4]
No
administrative scheme in Canada has a more profound impact upon
the lives of individuals than that governing immigration and the determination
of refugee status. In order to increase access to the process, it is acknowledged
that lawyers should not enjoy a monopoly in advising and representing
individuals before administrative decision-makers in immigration and refugee
matters.
[5]
Although legal
aid is available in some proceedings, immigration consultants have a valuable
role to play in assisting individuals of limited means to negotiate this complex
legal and administrative scheme. Further, the fact that a consultant is of the
same ethnic background as the client, and can communicate with the client in
her own language, can be both reassuring to the individual caught up in the
immigration system, and helpful to the decision-maker.
[6]
However, it
is also recognized that consultants too often have been incompetent and have preyed
unscrupulously upon clients. Some form of regulation has long been thought essential
to protect the vulnerable, to assist decision-makers, and to maintain confidence
in Canada’s immigration system. (See,
for example, Law Reform Commission of Canada, Draft Final Report, The
Determination of Refugee Status in Canada: A Review of the Procedure (1992)
(Appeal Book, vol. 10, pp. 2542-2543); Ninth Report, The Standing Committee on
Citizenship and Immigration (1995) (Appeal Book, vol. 10, p. 2504); Advisory
Committee Report on Regulating Immigration Consultants (2003) (Appeal Book,
vol. 1, pp. 86-8)).
[7]
An indirect
form of regulation is exercised over consultants employed by lawyers, who are
responsible to their self-regulatory bodies for their employees’ conduct and, if
things go wrong, may be disciplined for inadequate supervision. However, law
societies have no power to discipline non-lawyers. A law firm may, of course, dismiss
an employee for misconduct. From a consumer protection perspective, this is a
sanction of limited value, since, in the absence of regulation, dismissed
immigration consultants can always seek to continue their practice with other
lawyers or immigration consultants, or on their own.
[8]
The legal
foundation of the role of immigration consultants is found in IRPA, subsection
167(1), which permits those appearing before the Immigration and Refugee
Protection Board (Board) to be represented by “a barrister or solicitor or
other counsel”. In this context, “other counsel” means persons other than
barristers or solicitors. Representation by non-lawyers is a common feature of
administrative adjudication: see, for example, Ontario’s general administrative procedural
code, the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, section
10.
[9]
IRPA, subsection
167(1) does not apply to representation in immigration matters before the
Federal Court or the Federal Court of Appeal. Consequently, individuals who are
not representing themselves may normally only be represented in judicial review
proceedings by a solicitor: Federal Courts Rules, SOR/09-106, rule 119.
[10]
The
validity of the predecessor of IRPA, subsection 167(1), namely, the Immigration
Act, R.S.C. 1985, c. I-2, section 30 and subsection 69(1), was challenged
in Law Society of British Columbia v. Mangat, [2001] 3 S.C.R. 113 (Mangat).
The Law Society argued that the practice of law is a provincial matter
pertaining to property and civil rights, and the administration of justice, in
the Province (Constitution Act, 1867, section 92(13) and (14)).
[11]
The
practice of law is defined in section 1 of the Legal Profession Act,
S.B.C. 1987, c. 225, to include representing individuals as counsel or advocate
for a fee, and is restricted by subsection 26(1) to members of the Law Society.
Consequently, the Law Society submitted, section 30 and subsection 69(1) of the
Immigration Act were invalid in so far as they purported to permit
non-lawyers to represent clients before the Immigration and Refugee Board (as
the Board was then called) in British Columbia, and to give legal advice and to
prepare documents for use in those proceedings.
[12]
The
Supreme Court of Canada disagreed. Writing for the Court, Justice Gonthier held
that the “pith and substance” of section 30 and subsection 69(1) was the grant
of procedural rights to aliens in the administrative process and, as such, fell
within the competence of Parliament with respect to aliens and naturalization under
section 91(25) of the Constitution Act, 1867. Further, he stated that
the regulation of the practice of law in a province falls within section 92(13).
Because lawyers play an integral role in the administration of justice, he was inclined
to the view that section 92(14) might also be a source of provincial
legislative competence, a question which it was not necessary to decide in
order to dispose of the appeal: see para. 46.
[13]
After
finding that section 30 and subsection 69(1) of the Immigration Act had
a “double aspect”, that is, they had both federal and provincial features of
equal importance (aliens and naturalization, and property and civil rights), Justice
Gonthier applied the paramountcy doctrine to give precedence to the federal
legislation over the conflicting provincial legislation. As a result, the Legal
Profession Act’s prohibition of non-lawyers from practising law was
constitutionally inapplicable to persons representing and advising clients
pursuant to the Immigration Act.
[14]
Finally,
the Court noted that the Governor-in-Council had statutory authority under
paragraph 114(1)(v) of the Immigration Act to enact regulations
to regulate the “other counsel” who may appear before the Board by requiring
them to obtain a licence from a prescribed body. However, the Court concluded
that, while the regulation of immigration consultants might be desirable, an
exercise of the power under paragraph 114(1)(v) was not a precondition
of the validity of section 30 and subsection 69(1).
[15]
I note by
way of parenthesis that Ontario’s Law Society Act,
R.S.O. 1990, chap, L.8, does not contain a similar general definition of the
practice of law, in which only lawyers may engage. However, the courts have
defined the scope of the monopoly in proceedings to determine whether a person
has breached section 50 of the Act by acting “as a barrister or solicitor”:
see, for example, Law Society of Upper Canada v. Stoangi (2003), 64 O.R.
(3d) 122 (C.A.).
(ii) The regulatory scheme
(a) origins
[16]
Partly as
a result of the endorsement in Mangat of the federal government’s legal authority
to require immigration consultants to be licensed by a prescribed body, the
Minister appointed an external committee in October 2002 to advise him on the
regulation of immigration consultants. Its mandate was to identify specific
concerns and to recommend how consultants might be made more professional. The
committee included immigration and refugee lawyers, legal academics, immigration
consultants, representatives of non-governmental organizations, and the
Executive Director of the Board. After describing the failed attempts to deal
with the persistent concerns about the competence and ethics of immigration
consultants, the committee recommended that regulations be enacted to define
who may advise and represent clients in the immigration process at the
administrative level, and to identify the organizations recognized as
regulating them.
[17]
After
canvassing regulatory models in other jurisdictions, the committee presented a
range of options, together with their respective advantages and disadvantages. It
was of the view that IRPA, section 91 conferred the legal authority to create
“an independent and flexible regulatory body for immigration consultants” and,
to this end, recommended that a non-share capital corporation be created under
Part II of the Canada Corporations Act with the object of regulating
immigration consultants.
[18]
The committee
also made more detailed recommendations about the appointment and composition
of the board of directors of the proposed corporation, and its need for broad powers
to make by-laws to establish, among other things: a code of conduct for
members; complaints and discipline mechanisms; a compensation fund and
liability insurance; and ongoing educational programs. Finally, it recommended
that the Minister provide start-up funding to be used to remunerate the directors
and staff of the corporation, until it became self-sustaining through members’
fees.
(b)
implementation
[19]
The Minister
adopted these recommendations and, in June 2003, set up a departmental
Secretariat on Regulating Immigration Consultants to implement them. Accordingly,
in October 2003, after discussions with officials from Citizenship and
Immigration Canada (CIC), including the Executive Director of the Secretariat, four
former members of the Minister’s advisory committee incorporated a non-share
capital corporation, the Canadian Society of Immigration Consultants, under Part
II of the Corporations Act. They also became its first directors. The principal
purpose of the corporation was
to regulate in the public
interest eligible persons who are members of the corporation and advise or
represent individuals, groups and entities in the Canadian immigration process
(immigration consultants), as determined in accordance with the policies and
procedures published by the corporation from time to time.
[20]
It was
also agreed that CIC would provide interim funding and seek an amendment to the
Regulations to recognize members of CSIC, as well as members of law societies
in Canada and notaries in Québec, as
authorized to advise, consult with and represent, for a fee, individuals
involved in immigration proceedings before administrative decision-makers.
[21]
Proposed amendments
to the Regulations were pre-published in December 2003 in Part I of the Canada
Gazette, together with a Regulatory Impact Analysis Statement (RIAS). After
public consultations, the amended Regulations came into effect in April 2004. Two
points may be made about them at this stage.
[22]
First, as
a body incorporated under the Corporations Act, CSIC has no statutory powers.
The Regulations put some teeth into the regulatory scheme by providing that
only members of CSIC will be permitted to advise, consult with, and represent,
for a fee, individuals who are the subject of proceedings and applications
before the Minister, CIC officers, or the Board. According to the RIAS, officers
of CIC, Canada Border Security Agency (CBSA), and the Board, will refuse to
deal with, or hear, a person, who is representing an individual and is not an
“authorized representative”. An application to CIC or CBSA officers may be
returned to the applicant, or refused, if submitted by a person who is not an
“authorized representative”. However, there is no sanction against an
unauthorized representative in this situation, and anyone can still hold
themselves out as an immigration consultant.
[23]
Second, as
a result of extensive consultations, LSUC, the Federation, and the Canadian Bar
Association, persuaded the Minister to amend the final text of the Regulations by
including students-at-law working under the supervision of a lawyer or a notary
as “authorized representatives”. Students-at-law are thus not required to
become members of CSIC in order to be able to advise, consult with, and represent
clients in immigration and refugee matters.
[24]
However, the
Minister refused to accede to a demand that the definition of “authorized representative”
also include other employees of law firms. Nonetheless, employees of law firms who
assist a lawyer acting for a client in an immigration matter are not required
to become members of CSIC in order to be able to continue their work, provided
that their assistance does not take the form of advising, consulting with, or
representing clients in immigration proceedings.
[25]
Counsel
for LSUC advised the Court that, if the Minister had exempted all employees of
lawyers from membership in CSIC, it probably would not have instituted this
proceeding. However, having decided to take the litigation path, LSUC’s challenge
to the validity of the Regulations is not confined to the narrow issue of their
impact on law firm employees.
[26]
Despite
its candour, this admission somewhat detracts from the LSUC’s posture as the
defender of the independence of immigration consultants at large, the vast
majority of whom are not employed by lawyers. No consultant has joined LSUC’s
challenge to the validity of the regulatory scheme. Indeed, CSIC, the
regulatory body to which more than 1,300 immigration consultants belonged in
2006, opposes LSUC in this proceeding.
(c) relationship
of CSIC and the Minister
[27]
It is not
disputed that the Minister has taken an active role in the creation, early
nurturing, and monitoring of CSIC. In view of the long history of public
concern about the conduct and competence of immigration consultants, and the
responsibility of the Minister to respond to them, ministerial involvement in
the creation and implementation of a regulatory scheme is, on its face, neither
surprising, nor sinister.
[28]
However, in
addition to the part played by the Minister in initiating the self-regulatory
scheme for immigration consultants, the following aspects of the relationship
between the Minister and CSIC are relied upon by LSUC to demonstrate that the
regulatory body is subject to control by the Minister, with whom immigration
consultants’ clients are often in a conflictual relationship.
[29]
First, in
October 2003, the Minister entered into a “Contribution Agreement” with CSIC.
The “contribution” comprised two elements: first, a grant of no more than
$700,000 to defray legal costs associated with the incorporation of CSIC, and
the “start up” costs that it incurred between December 1, 2003 and March 31,
2004; second, a loan of no more than $500,000 to cover the operational costs of
CSIC between April 1, 2004 and March 31, 2005.
[30]
In return,
CSIC undertook to provide CIC with both a complete set of year-end financial
statements, and monthly activity reports giving a list of members and their
countries of proposed operation. In addition, CSIC was required to report its
progress on the “deliverables”, such as: creating public confidence in CSIC and
its governance structure; and establishing a code of conduct, complaints and
discipline mechanisms, education and training programs, requirements for membership,
and errors and omissions insurance.
[31]
Second,
CIC developed a Results-based Management and Accountability Framework (RMAF)
for CSIC, dated December 1, 2003. RMAFs are a Treasury Board tool designed to
assist federal public service managers in measuring and reporting on the outcomes
of policies, programs, and other government initiatives. The RMAF relevant to
CSIC provides information about, among other things: the nature of the problem that
CSIC was created to deal with; its objectives and governance structure
(including one ex officio, non-voting, representative of CIC on CSIC’s ten-member
board of directors); the financial contributions made by CIC and the activities
that they were intended to fund; and CSIC’s reporting obligations.
[32]
The Contribution
Agreement and the RMAF provide that CIC monitoring of CSIC will continue until
the $500,000 loan is paid off, which is to be no later than 12 months after
CSIC reports to CIC that it has 3,000 registered members.
(d) CSIC in
operation
[33]
Since its
creation, CSIC has made considerable progress on producing its “deliverables”.
In particular, it has established corporate by-laws, membership standards,
rules of professional conduct, complaints and discipline processes, and errors
and omissions insurance requirements.
[34]
CSIC has
also adopted a business plan for the years 2003-2005, which assumes that it
will have 3,000 members by April 2004. In fact, it has fallen significantly
short in this respect. As of September 2006, its membership was only 1,354, which
has caused members of CSIC’s board of directors to express concern about the
corporation’s financial viability. However, the cloud thrown over the scheme by
LSUC’s challenge to its validity may explain in part the lower than expected CSIC
membership figure.
[35]
CSIC has
reported to CIC on its activities as required by the Contribution Agreement,
and an independent annual audit of CSIC was undertaken in 2005 and 2006. On the
other hand, despite the provision of the RMAF, CIC has not had a representative
on CSIC’s board of directors since April 2005, as a result, it is said, of
changed government views about the appropriateness of its participation in the
affairs of independent organizations. Previously, CIC officials had attended
CSIC board meetings. In March 2005, the CIC Secretariat on Regulating
Immigration Consultants was wound up.
C. LEGISLATIVE FRAMEWORK
[36]
Subsection
5(1) of IRPA establishes the Governor-in-Council as the repository of the
regulation-making powers conferred by the Act, unless otherwise provided.
|
5.(1) Except as
otherwise provided, the Governor in Council may make any regulation that is
referred to in this Act or that prescribes any matter whose prescription is
referred to in this Act.
|
5.(1) Le gouverneur en
conseil peut, sous réserve des autres dispositions de la présente loi,
prendre les règlements d’application de la présente loi et toute autre mesure
d’ordre réglementaire qu’elle prévoit.
|
[37]
The
regulation-making power relevant to this appeal is contained in IRPA, section
91.
|
91. The
regulations may govern who may or may not represent, advise or consult with a
person who is the subject of a proceeding or application before the Minister,
an officer or the Board
|
91. Les règlements peuvent
prévoir qui peut ou ne peut représenter une personne, dans toute affaire
devant le ministre, l’agent ou la Commission, ou faire office de conseil.
|
The “Board” referred to in section
91 is the Immigration and Refugee Protection Board.
[38]
Regulations
made pursuant to section 91 provide that only “authorized representatives” may
“for a fee” represent, consult with or advise clients in connection with
immigration matters at the administrative level, and that, apart from lawyers,
students-at-law and, in Québec, notaries, a person must be a member of the CSIC
in order to be “an authorized representative”.
|
2. "authorized
representative" means a member in good standing of a bar of a
province, the Chambre des notaires du Québec or the Canadian Society of
Immigration Consultants incorporated under Part II of the Canada
Corporations Act on October 8, 2003.
…
|
2. «représentant
autorisé» Membre en règle du barreau d’une
province, de la Chambre des notaires du Québec ou de la Société canadienne
de consultants en immigration constituée aux termes de la partie II de la Loi
sur les corporations canadiennes le 8 octobre 2003.
…
|
|
13.1(1) Subject to subsection
(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.
…
(3) A student-at-law shall
not be deemed under subsection (1) to be representing, advising or consulting
for a fee if the student-at-law is acting under the supervision of a member
in good standing of a bar of a province or the Chambre des notaires du Québec
who represents, advises or consults with the person who is the subject of the
proceeding or application.
|
13.1(1) Sous réserve du
paragraphe (2), il est interdit à quiconque n’est pas un représentant
autorisé de représenter une personne dans toute affaire devant le ministre,
l’agent ou la Commission, ou de faire office de conseil, contre rémunération.
…
(3) Pour l’application du
paragraphe (1), un stagiaire en droit n’est pas considéré comme représentant
une personne ou faisant office de conseil contre rémunération s’il agit sous
la supervision d’un membre en règle du barreau d’une province ou de la
Chambre des notaires du Québec qui représente cette personne dans toute
affaire ou qui fait office de conseil.
|
D. DECISION OF THE FEDERAL COURT
[39]
Justice Hughes’
reasons can be summarized as follows:
(i) The limited degree of monitoring of
the affairs of CSIC by the Minister following the start-up grant and loan
appropriately made by the Minister to CSIC was not “excessive or unwarranted”
(at para. 16). The Regulations could not be struck down on the ground that they
offended the rule of law, an unwritten principle of the Constitution.
(ii) Designating members of an existing
corporation, CSIC, as entitled to act as immigration consultants is not an
improper sub-delegation by the Governor-in-Council of its power to issue
regulations to govern who may represent, advise or consult with those subject
to proceedings before the Minister, a visa officer, or the Board.
(iii) The failure of the regulatory
scheme to designate those employed by law firms as “authorized representatives”
was not discriminatory and does not give rise to situations in which
lawyer-client privilege may be required to be breached.
(iv) The regulation-making power is
sufficiently broad to authorize the promulgation of regulations to create a
regulatory scheme for immigration consultants.
[40]
Justice Hughes
certified the following question for appeal pursuant to paragraph 74(d)
of IRPA:
Are the Regulations Amending the
Immigration and Refugee Protection Regulations, SOR/2004-59, which were
enacted pursuant to section 91 of the Immigration and Refugee Protection
Act, ultra vires?
E. ISSUES AND ANALYSIS
[41]
Since this case
involves determining the vires of the Regulations, on both constitutional
and statutory grounds, the applicable standard of review is correctness: Dunsmuir
v. New Brunswick, 2008 SCC 9 at paras. 58 and 59. There
was no dispute about this.
Issue
1: Are the Regulations an unconstitutional infringement of the independence of
the bar?
[42]
LSUC says that the
independence of the judiciary is a fundamental element of democratic government
under the rule of law. In Canada, the independence of superior court
judges is expressly guaranteed by the Constitution Act, 1867, sections
96-100. However, the constitutional protection of judicial independence also
extends to other judges, as an unwritten principle of the constitution: Reference
re Remuneration of Judges of the Provincial Court of Prince Edward Island; Reference
re Independence and Impartiality of Judges of the Provincial Court of Prince
Edward Island R v. Campbell; R v. Ekmecic; R v. Wickman; Manitoba
Provincial Judges Assn. v. Manitoba (Minister of Justice), [1997] 3 S.C.R.
3 at paras. 107-109.
[43]
The independence of
the bar, LSUC argues, is necessarily incidental to the independence of the judiciary
because members of the bar play an integral role in the administration of
justice. In an adversarial system, judges rely heavily upon counsel to present
the best case that they can for their clients. To be able to do this, lawyers
must be free from improper extraneous constraints. For this reason, the legal
profession is self-governing, and lawyers’ regulatory bodies are established by
statute and operate independently of government.
[44]
Counsel for LSUC
further submitted that the unwritten constitutional protection of the independence
of the bar applies by extension to immigration consultants. It was established
in Mangat, at para. 38, that they practise law when, for a fee, they
advise and represent clients in immigration matters before administrative
tribunals. To support his argument that immigration consultants come within the
scope of the protection of the independence of the bar, counsel emphasized the
important rights at stake in immigration and refugee proceedings, including
rights under section 7 of the Canadian Charter of Rights and Freedoms.
[45]
The independence of
immigration consultants’ regulatory body from Executive influence is also said
to be important because the Minister or a CIC official will normally be either a
party opposed in interest to an immigration consultant’s client, or the
decision-maker. Accordingly, counsel argued, the institutional arrangements
governing CSIC must establish it as a self-regulatory body that is sufficiently
independent of the Minister that no reasonable person would think that it
improperly constrains immigration consultants, to the detriment of the quality
of service that they provide to their clients.
[46]
Counsel submitted
that CSIC cannot be regarded as independent, because of the role played by the
Minister and his officials in its creation, funding and monitoring. In
addition, the legal foundation of the regulatory scheme comprises regulations,
enacted and capable of amendment by the Executive alone. Since Parliament has a
limited role in the regulation-making process, the independence of CSIC is in
jeopardy.
[47]
I do not agree.
Although counsel was able to provide no supporting authority, I shall assume
for present purposes that the independence of the bar is an unwritten principle
of the Constitution, largely as an emanation of the constitutional guarantee of
judicial independence, which is encompassed by the rule of law. However, if
such a principle exists, which I need not decide, there are two significant obstacles
to its application to this case.
[48]
First, it would have
to be extended to include non-lawyers when advising or representing clients for
a fee before the Minister, CIC officials, and the Board. In my view, the fact
that immigration consultants were said in Mangat to be practising law,
as defined by the law of British
Columbia, does not get the
appellant home. Nor is it irrelevant that persons with the necessary means may
choose to retain a lawyer to advise and represent them in immigration matters.
[49]
Second, since the
independence of the bar as an aspect of the rule of law is said to derive largely
from the independence of the judiciary, it is difficult to see why it should
apply to proceedings before the Minister and CIC officers, even when exercising
statutory powers to which the duty of fairness applies. Nor is it clear that
such a principle would apply to the Board, an arm’s length administrative
tribunal whose independence of the Executive may not be constitutionally
guaranteed (Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), [2001] 2 S.C.R. 781), even though
some of its decisions implicate Charter rights.
[50]
In any event, it is
my opinion that a reasonable person who had thought the matter through in a
practical manner would not conclude that the regulatory scheme deprives CSIC of
independence of the Executive in ways that improperly impinge on the ability of
immigration consultants to advise and represent their clients to the best of
their ability, without fear of sanction from their regulatory body.
[51]
First, 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.
[52]
Second, the ongoing
supervision of CSIC by the Minister is largely designed to ensure
accountability for the proper expenditure of public funds advanced to it. The
matters on which CSIC has been required to report, namely, its governance and
other institutional aspects of its operations, do not intrude into its
day-to-day operation in such a way as to adversely affect immigration
consultants’ ability to provide a professional service to their clients.
[53]
To support their
argument that the receipt of government funding, and the corollary obligations
to account for its expenditure, are not incompatible with independent
professional regulation, the Minister and CSIC point out that LSUC recently
requested $3.3 million from the Government of Ontario to finance its regulation
of paralegals, and that it will be required to report to the Attorney General
of the Province on the expenditure of the funds and the implementation of its
mandate to regulate paralegals.
[54]
Third, there is no
suggestion that the Minister has sought to exert any influence over CSIC that
is calculated to curb the independence that immigration consultants need in
order to be effective advocates either before or against the Minister and CIC officials,
and before the Board.
[55]
In short, assuming
that the independence of the bar is constitutionally guaranteed, and that it
applies in the present context, it is not infringed. The Regulations leave the
responsibility for the day-to-day regulation of immigration consultants to a
self-regulatory body incorporated under the Corporations Act. 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 fact that the Governor-in-Council has the
authority to amend the Regulations to remove CSIC’s regulatory role, or to
enhance the role of the Minister in its affairs, does not, in my opinion, deprive
CSIC or immigration consultants of their independence.
Issue
2: Does section 91 authorize the establishment of a scheme to regulate a
profession?
[56]
LSUC argues that schemes
for the regulation of professions normally rest on legislation enacted by the
relevant legislature. Because professional self-regulatory bodies are the
gatekeepers of important rights and duties connected to the practice of a profession,
and the public interest in consumer protection and competition is at stake, the
general wording of IRPA, section 91 should not be interpreted as authorizing
the making of regulations that create a regime for the regulation of
immigration consultants.
[57]
I do not agree. For
convenience, I set out again the relevant enabling provision in IRPA.
|
91. The
regulations may govern who may or may not represent, advise or consult with a
person who is the subject of a proceeding or application before the Minister,
an officer or the Board
|
91. Les
règlements peuvent prévoir qui peut ou ne peut représenter une personne, dans
toute affaire devant le ministre, l’agent ou la Commission, ou faire office
de conseil.
|
[58]
On a plain reading,
the text of section 91 authorizes the making of regulations with the very subject-matter
of the Regulations here in dispute. For LSUC to succeed on this issue it is
necessary to read into the text of section 91 significant limitations on the
power delegated. In my opinion, there is no warrant for so doing. The Governor-in-Council
was not pursuing purposes extraneous to IRPA when it enacted the Regulations promoting
professional self-regulation in order both to protect individuals with a
proceeding before an immigration tribunal from incompetent and unscrupulous
immigration consultants, and to maintain the integrity of Canada’s immigration
system. The framework nature of IRPA is another reason why it would be
inappropriate for the Court to read in unexpressed limitations on a broadly
worded, yet relatively specific, power.
[59]
LSUC argues that the power
conferred by section 91 is less specific than the corresponding provision in
the Immigration Act, which was considered in Mangat, but repealed
by IRPA.
|
114.(1) The Governor in Council may make
regulations
…
(v) requiring any person other than a person
who is a member of the bar of any province, to make an application for and
obtain a licence from such authority as is prescribed before the person may
appear before an adjudicator, the Refugee Division or the Appeal Division as
counsel for any fee, reward or other form of remuneration whatever;
|
114.(1) Le gouverneur
en conseil peut, par règlement:
[…]
(v) exiger de
quiconque comparaît devant un arbitre, la section du statut ou la section
d’appel en qualité de procureur rétribué sans être membre du barreau d’une
province, qu’il soit titulaire d’une autorisation délivrée à cet effet par
les autorités habilitées à le faire aux termes des règlements;
|
[60]
It is true that this
provision expressly contemplates a licensing scheme operated by a “prescribed
body”, while section 91 speaks, less precisely, of regulations “governing who
may or may not” advise and represent someone in an immigration matter before an
administrative decision-maker. However, I am not persuaded that this change in
language represents an intention by Parliament to narrow the range of
regulatory options available to the Governor-in-Council, and warrants the
implication of limiting words.
[61]
In the absence of any
indication in the legislative record, the power delegated by section 91 should
be determined first and foremost by reference to its text and purposes. The
broad language of section 91 leaves more regulatory options to the Governor-in-Council
than paragraph 114(1)(v) of the repealed Immigration Act. I do
not see why the regulatory model identified by paragraph 114(1)(v) should
be regarded as impliedly excluded from section 91.
[62]
Whether it would have
been preferable for the Minister to have rejected the recommendation of his
advisory committee, and created a professional self-regulatory scheme that
rested on an Act of Parliament, is a policy question and hence beyond the rather
limited scope of judicial review of the vires of regulations.
Issue
3: Are the Regulations ultra vires as authorizing breaches of
solicitor-client privilege?
[63]
The argument advanced
by the Federation is that the Regulations imperil solicitor-client privilege. Parliament
cannot be taken, it is said, to have intended the general language of IRPA,
section 91 to authorize the making of regulations that weaken such an important
pillar of the administration of justice.
[64]
The problem is alleged
to arise because the Regulations compel non-lawyer employees of a law firm to
become members of CSIC if they wish to advise, consult with, and represent
clients in immigration matters. If such an employee were investigated by CSIC
following a complaint from a client, the employee could be asked by CSIC to
disclose confidential information concerning the employee-client relationship,
including material covered by solicitor-client privilege.
[65]
Section 5.1 of CSIC’s
Rules of Conduct deal with members’ duty of confidentiality. It imposes
on members a broad duty not to disclose information concerning the personal and
business affairs of clients acquired during their professional relationship,
“unless disclosure is expressly or impliedly authorized by the client, is
required by law, or is otherwise permitted by the Rules.” The Commentary
to the Rules states that, under this provision, a member being investigated by
CSIC, following a complaint by a client, may be required to disclose
“confidential information”. However, since no such rules have been made, the
words of section 5.1 which I have underlined cannot be said to authorize the
disclosure of “confidential information”, let alone that covered by solicitor-client
privilege.
[66]
The Federation also
points to CSIC By-Law 13 on Professional Competence. In certain circumstances,
including an investigation of a member’s conduct, By-Law 13.1 empowers
CSIC to require members to provide information to it concerning the quality of
the member’s professional service. This, it is said, may include material covered
by solicitor-client privilege.
[67]
Whether or not members
can be required to disclose to CSIC “confidential information” as defined by
section 5.1, they cannot be required to disclose “confidential information” which
is also covered by solicitor-client privilege. Neither Rule 5.1 nor By-Law 13 expressly
purports to require the disclosure of privileged material. Indeed, a claim by
CSIC that it had, or could have, the legal power to require a member to hand
over such material would be given short shrift by a court: see Canada (Privacy Commissioner) v. Blood Tribe
Department of Health,
2008 SCC 44.
[68]
Nor are lawyers
without the practical and legal means of preventing the disclosure to CSIC of privileged
material. For instance, a law firm can instruct its employees to refer to the
relevant lawyer in the firm any demand by CSIC to disclose information, so that
the lawyer can determine if its disclosure should be resisted on the ground of privilege.
The fact that By-Law 13.2 provides that CSIC must provide the member with a
detailed list of the information required to be produced enables a lawyer to examine
the material requested in order to determine whether it might be privileged.
[69]
If the law firm
instructed the employee not to disclose on the ground of legal privilege, but
CSIC persisted, threatening the member with disciplinary sanctions for
non-compliance with its demand for information, the firm could ask a court to
enjoin CSIC from demanding the disclosure of information to which it was not in
law entitled because it was privileged. In Wilder v. Ontario Securities
Commission (2001), 53 O.R. (3d) 519 (C.A.) at para. 34, Sharpe J.A. said of the
Commission:
… like any other public body exercising
statutory authority, [it ]must ensure on a case-by-case basis that the
substantive legal right to solicitor-client privilege is respected.
This
proposition applies a fortiori to CSIC, which has no statutory powers.
[70]
In addition, as
Justice Hughes suggested, it is open to CSIC and LSUC to co-operate when
material protected by solicitor-client privilege is relevant to an
investigation being conducted by CSIC of one of its members, who is employed by
a law firm.
[71]
Thus, in my opinion,
there is no basis in either fact or law for the Federation’s concern that the
regulatory scheme jeopardizes the confidentiality of information covered by
solicitor-client privilege by subjecting law firm employees to demands for
disclosure by CSIC. The Regulations are therefore not invalid on this ground.
Issue
4: Do the Regulations effect an unauthorized sub-delegation of power to CSIC?
[72]
LSUC’s argument is
that the Regulations are invalid because, by defining an “authorized
representative” as including a member of CSIC, they sub-delegate to CSIC the
Governor-in-Council’s statutory power to “govern” who, other than a lawyer,
student-at-law or notary, may advise and represent individuals in immigration
matters before administrative tribunals.
[73]
I accept that, by
providing that a member of CSIC in good standing is an “authorized representative”,
the Regulations sub-delegate the Governor-in-Council’s legislative power. The
effect of the Regulations is to leave to the rules of CSIC, including those
prescribing qualifications for membership, to define whether a person is a
member in good standing of CSIC, and thus an “authorized representative”. Similarly,
by designating a member in good standing of a provincial bar as an “authorized
representative” the Regulations effectively sub-delegate to the governing
bodies of the legal profession the power to determine who is eligible to
practise as an immigration consultant in administrative proceedings.
[74]
However, the presumption
against sub-delegation of a statutory power is no more than that, and it may be
inferred from the statutory context and objects that sub-delegation is
impliedly authorized by the enabling provision: see generally, John Willis, “Delegatus
Non Potest Delegare”, (1943), Can. Bar Rev. 257. In my opinion, section 91 impliedly
authorizes the particular sub-delegation effected by the Regulations.
[75]
According to LSUC,
section 91 should be interpreted as requiring the Governor-in-Council to
specify in the Regulations the rules and standards respecting membership in
CSIC, and presumably other aspects of the regulatory scheme. However, this is
inconsistent with LSUC’s contention that the Executive should not be closely
involved in the design and operation of the scheme for regulating immigration
consultants.
[76]
In my view, the desirability
of maintaining a distance between the Executive and the regulation of the
profession by an independent regulatory body is sufficient to displace the
presumption against sub-delegation: compare Re Peralta and The Queen in
Right of Ontario (1985), 49 O.R. (2d) 705 (C.A.).
[77]
It is true that,
unlike lawyers’ regulatory bodies, the regulatory body for immigration consultants
is new and has only recently enacted by-laws dealing with, for example,
admission to membership, education programs, and discipline. Nonetheless,
CSIC’s purposes, by-laws, and relationship to the Minister make it an appropriate
body to act as the gatekeeper to the profession of immigration consultant.
[78]
LSUC also relies on
the wording of section 91 which empowers the making of regulations to “govern
who may or may not represent” and advise clients in immigration matters before
the Minister, CIC and the Board. Noting the change from paragraph 114(1)(v)
of the Immigration Act, LSUC argues that the word “govern” suggests that
the Regulations must themselves prescribe the essential elements of the
regulatory scheme.
[79]
I do not agree. In my
view, the word “govern” cannot bear the weight that LSUC puts on it. In the
present context, “govern” has the more general meaning of “respecting”, “in relation
to” or “regarding”, and does not require that regulations contain the details
of the regulatory scheme. Nor do the corresponding words of the French text of
section 91, «Les règlements peuvent prévoir qui peut ou ne peut pas représenter
…. » require that the Regulations themselves specify, among other things, the
rules of membership in CSIC. In this context, «prévoir» is best translated as
“provide”.
[80]
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 implicitly
authorizes the sub-delegation to CSIC effected by the Regulations.
F. CONCLUSIONS
[81]
For these reasons, I
would dismiss the appeal, and answer the certified question as follows:
The
Regulations Amending the Immigration and Refugee Protection Regulations,
SOR/2004-59, enacted pursuant to section 91 of the Immigration and Refugee
Protection Act, are valid.
“John M. Evans”
“I agree
J.
Edgar Sexton J.A.”
“I agree
Pierre
Blais J.A.”
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