Docket: T-2082-10
Citation: 2012 FC 817
Ottawa, Ontario, June 26, 2012
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
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CLAUDIO CALVIN LEWIS
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Applicant
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and
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THE CANADIAN SOCIETY OF IMMIGRATION CONSULTANTS
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
Claudio
Calvin Lewis (Mr. Lewis) brings this application for judicial review of the
decision rendered by Jessika R. Morelli, Manager of Membership Registrations
and Approvals of the Canadian Society of Immigration Consultants [CSIC],
pursuant to section 18 of the Federal Courts Act, RSC 1985, c F-7. In
that decision, dated November 18, 2010, the CSIC suspended Mr. Lewis’
membership in the CSIC for non-compliance of the full membership requirements.
As a result, Mr. Lewis was removed from the Membership List and placed on the
Suspended Members List. His membership was revoked effective June 14, 2011.
[2]
For
the following reasons, this application is dismissed.
II. Factual background
A.
Parties
[3]
Mr.
Lewis is a paralegal. He joined the CSIC on January 23, 2004 and became a full
member on July 19, 2006.
[4]
The
CSIC is a non governmental organization, incorporated without share capital
under the Canada Corporations
Act, RSC 1970, c C-32. By regulation under the Immigration and Refugee
Protection Act, SC 2001, c 27, [IRPA], members of the society used
to be recognized as “authorized representatives” who may appear in immigration
proceedings and charge for their services (see Section 2 and subsection 13.1(1)
of the regulations of the IRPA in effect since 2004). In 2011, bill C-35
amended section 91 of the IRPA.
[5]
The
CSIC is governed by the applicable legislation, its by-laws and its letters
patent. The CSIC’s mandate is to regulate in the public interest, members of
the CSIC, as determined by its policies and procedures.
[6]
Pursuant
to its mandate, the Society enacted by-laws, created policies and established a
Continuing Professional Development [CPD] program.
B.
Facts
[7]
On
March 31, 2004, Mr. Lewis signed an application package which included an
Intent to Register form wherein he agreed to “abide by the Letters Patent,
By-laws, and Rules, Regulations and Policies (including, without limitation,
the Rules of Professional Conduct) established by CSIC, from time to time and
as amended from time to time and the authority of CSIC with respect to its
members” (see Exhibit D of the Affidavit of Jessika Morelli at page 92 of the
Respondent’s Record).
[8]
Mr.
Lewis’ first installment for his 2010-2011 membership fees was due on November
1, 2010.
[9]
On
November 5, 2010, Mr. Lewis was informed by email that his credit card was
declined for payment of his membership fees (see Exhibit E of the Affidavit of
Jessika Morelli at page 94 of the Respondent’s Record).
[10]
His
cheque for his mandatory CPD video payment was returned with the mention “without
provisions” as well. He was informed of the situation on November 8, 2010 (see
Exhibit E of the Affidavit of Jessica Morelli at page 95 of the Respondent’s
Record).
[11]
On
November 9, 2010, Mr. Lewis called Ms. Jie Li, the Society’s Finance Manager,
and promised to effect his payment on November 11, 2010 at the Society’s
offices. Mr. Lewis never made the payment.
[12]
On
November 18, 2010, Ms. Li referred Mr. Lewis’ file for suspension, to Ms.
Jessika Morelli, the Society’s Manager of Membership Registrations and
Approvals. According to Ms. Morelli, Mr. Lewis failed to take any remedial
measures for his non payment of membership fees and also failed to complete his
mandatory CPD.
[13]
Mr.
Lewis’ membership was suspended on November 18, 2010.
[14]
The
CSIC’s decision reads as follows:
Dear Mr. Lewis,
Your membership has been referred by the
Accounting Department to be suspended for non compliance of membership fees and
not meeting the 2010 CPD deadline, therefore not meeting the Full Membership
requirements. As a result, your name has been removed from the Membership List
and placed on the Suspended Members List effective November 18, 2010.
Please be advised that if you do not
remedy your breach and submit the $750.00 plus HST reinstatement fee by
December 18, 2010, at 5pm EST, the Society may revoke your membership pursuant
to By-law 10.20(a).
If you wish to reapply with the Society,
note that you will be applying for membership under the new criteria. As of
April, 13, 2006, only graduates from the accredited program will be eligible to
apply for membership.
Full Membership examination results are
valid for a period of one year from the date that the examination was successfully
passed and your language examination results are only valid for two years from
the date that the examination was successfully passed. If the one year time
period has lapsed, you will be required to re-write and successfully pass the
examination in order to bring your membership into good standing as well as pay
all the necessary fees as stated above.
Should you have any questions or concerns
regarding the Suspension Policy, please contact me immediately.
Please govern yourself accordingly,
Respectfully,
Jessika R. Morelli
[15]
On
December 16, 2010, Mr. Lewis filed an application for judicial review of his
suspension before the Federal Court of Canada.
[16]
On
April 29, 2011, the CSIC informed Mr. Lewis he had to pay an outstanding amount
of $4,843.28 for reinstatement (see Exhibit C of the Affidavit of Claudio C.
Lewis at page 17 of the Applicant’s Record).
[17]
Mr.
Lewis’ membership was revoked on June 13, 2011 (see Exhibit D of the Affidavit
of Claudio C. Lewis at page 19 of the Applicant’s Record).
III. Legislation
[18]
By-laws
10.19 and 10.20 of the Canadian
Society of Immigration Consultants [CSIC] provide as follows :
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10.19
Suspension of Membership
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10.19 Suspension de l’adhésion
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The
membership of a Transitional Member, Full Member or Student Member shall be
suspended :
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L’adhésion d’un membre transitoire, d’un membre à part entière ou d’un
membre étudiant est suspendue dans les cas suivants :
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(a) if the Member fails to submit
required membership dues, fees, assessments or other sum levied or payable by
the Member to the Society or fails to submit any form, return or other
information required by the Society within thirty (30) days of the due date
of same or at another date mutually agreed upon by the Society and the
Member; or
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a) si le membre
n’acquitte pas les frais d’adhésion, les droits, les cotisations ou les
autres sommes applicables qu’il doit à la Société ou ne remet pas à la
Société un formulaire, une déclaration ou d’autres renseignements que
celle-ci exige dans les trente (30) jours suivant la date d’exigibilité de
ces éléments ou à toute autre date dont la Société et le membre auront
convenu mutuellement;
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(b) if the Member publishes a notice of
intention to resign on the Society’s website in accordance with By-law
10.17(d) and fails to submit an Application to Resign to the Society within
sixty (60) days of the publication of such notice or if the Member submits an
Application to Resign to the Society and fails to meet the requirements of
By-law 10.17 within sixty (60) days of notice from the Society to the Member
that he or she has failed to do so; or
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b) le membre publie
un avis de son intention de démissionner sur le site Web de la Société
conformément à l’alinéa d) du règlement 10.7 et ne remet pas une demande de
démission à la Société dans les soixante (60) jours suivant la publication de
cet avis ou le membre présente une demande de démission à la Société et ne
respecte pas les exigences du règlement 10.17 dans les soixante (60) jours
suivant l’avis que la Société lui fait parvenir à cet effet;
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(c) upon such time as a disciplinary or
administrative action against a Member by the Society results in the
suspension of the Member’s membership.
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c) au
moment où des mesures disciplinaires ou administratives que la Société prend
à l’encontre d’un membre entraînent la suspension de l’adhésion de celui-ci.
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10.20
Revocation of Membership
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10.20 Révocation de l’adhésion
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The
membership of a Transitional Member, full Member or Student Member shall be
revoked :
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L’adhésion d’un membre transitoire, d’un membre à part
entière ou d’un membre étudiant est révoquée dans les cas suivants:
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(a) when the Member fails to submit
required membership dues, fees, assessments or other sum levied or payable by
the Member to the Society or fails to submit any form, return or other
information required by the Society within sixty (60) days of the due date of
same or at another date mutually agreed upon by the Society and the Member,
provided that a Member may be reinstated as a Member if he or she makes
payment in full of all amounts owing to the Society and submits all forms,
returns and other information required by the Society within one (1) year of
the due date of same; or
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a) lorsque le membre
n’acquitte pas les frais d’adhésion, les droits, les cotisations et les
autres sommes applicables qu’il doit à la Société ou ne remet pas à la
Société un formulaire, une déclaration ou d’autres renseignements que
celle-ci exige dans les soixante (60) jours suivant la date d’exigibilité de
ces éléments ou à toute autre date dont la Société et le membre auront
convenu mutuellement; toutefois, un membre peut être réintégré à ce titre
s’il acquitte intégralement toutes les sommes dues à la Société et remet à la
Société tous les formulaires, déclarations et autres renseignements que
celle-ci exige dans un délai de un (1) an suivant la date d’exigibilité de
ces éléments;
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(b) upon such time a disciplinary or
administrative action against a Member by the Society results in the
revocation of the Member’s membership.
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b) au
moment où des mesures disciplinaires ou administratives que la Société prend
à l’encontre d’un membre entraînent la révocation de l’adhésion de celui-ci.
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A
Member whose Membership in the Society has been revoked may re-apply for
Membership in accordance with the By-laws and the policies and procedures
established and amended by the Society from time to time.
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Le membre dont
l’adhésion à la Société a été révoquée peut faire une nouvelle demande
d’adhésion conformément aux règlements administratifs et aux politiques et méthodes
établies par la Société et modifiées par celle-ci au besoin.
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IV. Issues and
Standard of review
A.
Issues
1. Did
the CSIC breach its duty of procedural fairness?
2. Was
the CSIC’s decision to revoke Mr. Lewis’ membership reasonable?
B.
Standard
of review
[19]
The
first issue is a question of procedural fairness that must be reviewed on a
standard of correctness (Mooney v Canadian Society of Immigration
Consultants, 2011 FC 496 at para 127).
[20]
As
for the second issue, the Supreme Court of Canada held in Dunsmuir v New
Brunswick, 2008 SCC 9 at para 53, that “where [a] question is one of fact,
discretion or policy, deference will usually apply automatically”. The decision
under review is an administrative action taken pursuant CSIC’s policies and
by-law. Consequently, the CSIC’s decision must be reviewed under a
reasonableness standard.
V. Parties’
submissions
A.
Mr.
Lewis’ submissions
[21]
In
his affidavit, Mr. Lewis alleges that “40 percent or approximately 890 of CSIC
members’ licences were revoked. Of that amount almost 95 percent of the
revocations are due [to] failure to pay fees and finance educational upgrading”
(see the Affidavit of Claudio C. Lewis at page 7 of the Applicant’s Record).
Mr. Lewis submits that the CSIC’s decision to suspend and revoke his membership
and to demand a reinstatement fee of $750.00 is unreasonable.
[22]
At
the hearing, Mr. Lewis acknowledged being in default of his obligations with
respect to payment of his membership fees and CPD but alleged that the Court
should intervene because the reinstatement fees were exorbitant and that he was
not afforded due process before being suspended and then revoked.
[23]
Mr.
Lewis further affirms that the revocation of his licence for a non-disciplinary
breach is a harsh penalty. He relies upon Wilson, and College
of Physicians and Surgeons
of Ontario, 2003 OJ No
4236 at para 12, where the Ontario Divisional Court of Ontario expressed the
following in one of its previous decisions:
The discipline committee of a
professional body is charged with a public responsibility to ensure and
maintain high standards of professional ethics and practice. The penalty
imposed by it against a member for professional misconduct, as has often been
said, is not to be lightly interfered with. The committee in the proper discharge
of its function is best able to assess the gravity of the misconduct, and its
consequences to the public and the profession. Unless there is error in
principle, unless the punishment clearly does not fit the crime, so to speak, a
Court sitting in appeal ought not to disturb the penalty and substitute its
judgment for that of the committee [see Takahashi v College of Physicians and Surgeons of Ontario (1980), 102 DLR (3d) 695].
[24]
Furthermore,
Mr. Lewis argues that the CSIC denied him procedural fairness as it revoked his
licence without affording him the opportunity to dispute the revocation through
an appeal process or at least a hearing. The CSIC therefore breached its duty
of procedural fairness.
B.
The
CSIC’s submissions
[25]
The
CSIC’s by-laws and policies were enacted pursuant to its sub-delegated
legislative authority. There is no evidence in the present case to demonstrate
that the CSIC’s By-laws were adopted in bad faith.
[26]
Moreover,
Mr. Lewis alleges a breach of procedural fairness but does not set out the
content of these rights. The CSIC submits that Mr. Lewis was provided with
numerous opportunities to comply with the membership requirements and was
afforded the opportunity to remedy his default.
[27]
The
circumstances of the revocation did not give rise to a hearing according to the
CSIC who argues that by failing to adhere to its policy or rules, the by-law,
on its own, attracts consequences. It further alleges that Mr. Lewis failed to
file a demand for assistance as provided for by the By-law.
[28]
The
CSIC submits that its decision was merely based on the requirements of the
by-law. It clearly did not fail to consider evidence nor did it make perverse
or capricious findings of facts.
[29]
At
the hearing, counsel for the Respondent also submitted there is a certain
mootness to Mr. Lewis’ application further to the enactment of amendments to
section 91 of IRPA, in that Mr. Lewis being a paralegal in good standing
with the Law Society of Upper Canada can now practice on immigration issues
irrespective of his membership in CSIC.
VI. Analysis
1. Did
the CSIC breach its duty of procedural fairness?
[30]
Mr.
Lewis argues that the CSIC breached its duty of procedural fairness because it
failed to provide him with an opportunity to challenge the revocation of his
membership. He adds that most of the revocations are attributable to economic
reasons.
[31]
The
decision to suspend a member for failure to pay membership fees is
administrative in nature. It therefore commands a low duty in terms of
procedural fairness. In the present case, there was no necessity for a hearing
contrary to Mr. Lewis’ submission. The CSIC’s regulations are clear: Mr. Lewis
received prior notice in writing and was forewarned of the consequences of his
failure.
[32]
The
Court finds there was no obligation to hold a hearing in the present
circumstances.
[33]
Furthermore,
the Member Assistance Policy of the CSIC provides that “the Membership
Committee in conjunction with the Treasurer of the Board may waive, delay
and/or reduce the payment of a member’s annual membership fee upon a sufficient
showing of hardship, as defined below. For the purposes of this policy,
"hardship" means an economic inability to pay dues as the result of a
medical condition, mental condition, pregnancy/parental leave or an involuntary
change in economic status” (see Exhibit C of the Affidavit of Jessika Morelli
at page 78 of the Respondent’s Record).
[34]
The
Policy affords members the opportunity to ask for a waiver, delay or reduction
of payable fees. In the present case, Mr. Lewis failed to avail himself of this
opportunity. Before the Court, Mr. Lewis stated he was not aware of the
existence of that policy and that it was incumbent on the CSIC to inform him of
the policy.
[35]
The
Court cannot accept such a proposition. There is no legal obligation on the
part of the CSIC to that effect.
[36]
For
these reasons, the Court finds that the CSIC did not breach its duty of
procedural fairness towards Mr. Lewis.
2. Was
the CSIC’s decision to revoke Mr. Lewis’ membership reasonable?
[37]
The
CSIC’s decision to revoke Mr. Lewis’s membership was reasonable. As the CSIC
noted in its submissions, “the factual basis for the [Mr. Lewis]’ suspension
was grounded on very simple failings to comply with the Society’s requirements
for membership, i.e. failing to pay his annual fee and failing to complete his
CPD requirement. The basis for [that] decision is clearly evidenced in the
Manager’s decision letter of November 18, 2010” (see Tab 2, page 165, para 61
of the Respondent’s Record).
[38]
The
Court also notes that Mr. Lewis failed to establish that the CSIC had ignored
probative evidence or demonstrate that he had complied with the CSIC’s by-law.
On the contrary he acknowledged being in default of payment.
[39]
In
the enforcement of CSIC’s by-laws and policies, Ms. Morelli had limited
discretion. She reasonably applied by-laws 10.19 and 10. 20 to the case.
[40]
Finally,
the Court must underline that a judicial application is not the proper
proceeding to dispute the imposition of reinstatement fees.
[41]
This
application for judicial review is therefore dismissed, each party paying its
costs.
VII. Conclusion
[42]
The
CSIC did not breach its duty of procedural fairness nor did it misapply its
by-laws. It was reasonable for the CSIC to revoke Mr. Lewis’ membership since
he failed to comply with the CSIC’s membership requirements under By-law 10.19
and 10.20. Therefore, the Court concludes that this application for judicial
review be dismissed, each party paying its costs.
JUDGMENT
THIS COURT’S
JUDGMENT is that
1.
This
application for judicial review is dismissed; and
2. Each
party paying its own costs.
"André
F.J. Scott"
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