Fighting for public protection

It seemed like a clear-cut case: after investigating a series of client complaints against immigration consultant Jaswant Singh Mangat, the Law Society of BC won a BC Supreme Court injunction prohibiting Mr. Mangat from practising immigration law without the necessary credentials required to practice law in BC. Mr. Mangat appealed the decision and, on November 27, 1998, it was reversed by the BC Court of Appeal in a unanimous decision.

The Honourable Madam Justice Southin included within her written reasons “I have concluded, although there is much to be said for both points of view, that constitution, organization, practice and procedure, and so forth, of tribunals established under the Immigration Act are matters within the classes of subjects enumerated in s.91 and thus, by the concluding words of s.91, ‘shall not be deemed to come within the Class of Matters of a local or private Nature... assigned exclusively to the Legislatures of the Provinces’.” Referencing the “doctrine of paramountcy” in his concurring reasons, Mr. Justice MacKenzie indicated that “the activities of the appellants are insulated from the Legal Profession Act only to the extent that they fall within the ambit of ss 30 and 69(1) of the Immigration Act.” The Honourable Mr. Justice Hollinrake agreed, and the injunction granted in the original decision was vacated.

The Law Society of BC has announced that it will seek leave to appeal to the Supreme Court of Canada. “We are very disappointed with the BC Court of Appeal’s far-reaching decision,” said Trudi Brown QC, Law Society Treasurer at the time of the decision. “Some immigration consultants openly practice law and pose a risk to immigrants who mistakenly believe them to be qualified legal advisors. The Law Society believes that the public is not well served receiving legal advice from people who are not qualified to give it.”

The CBA, both nationally and provincially, along with the Canadian Council for Refugees and other non-governmental organizations, have been calling for Immigration Minister Lucienne Robillard to ensure that—at a minimum—immigration consultants are regulated, with discipline and education requirements and a complaint mechanism.

“We’ve now reached a bizarre state where you can’t hire a non-lawyer to fight a parking ticket, but anyone can represent immigrants and refugees in the most serious issues concerning their future, including their very life,” said Phil Rankin, Secretary of the CBA BC Branch Immigration Section. “Consultants are unregulated, without insurance, without a complaint mechanism, without disciplinary procedures, without the need for any legal knowledge, and many perform abysmally, misleading their clients and ruining their lives.”

Current proposed changes to the Immigration Act make no reference to regulation of immigration consultants. Minister Robillard has consistently said that the unauthorized practice of law among immigration consultants is a provincial matter, but the BC Court of Appeal ruling clearly challenges that position.

This article was published in the February 1999 issue of BarTalk. © 1999 The Canadian Bar Association. All rights reserved.