Counsel’s Increased Liability under the new Citizenship Act/Regulations


Many of you have may have noticed that I have been quite active in writing about the recently in-force Strengthening Canadian Citizenship Act [“SCCA”] and how it may affect Applicants. Earlier this week, I wrote this piece for New Canadian Media where I looked at good, bad, and ugly provisions of the SCCA and ultimately concluded that it’s contradictory effect on immigration policy may be more harmful than the provisions themselves.

I’ve also been looking at how the SCCA may affect the work of Counsel (which I will use interchangeably with the term Authorized Representatives) for Citizenship Applicants. In my forthcoming article in the Citizenship and Immigration Law Bulletin for Thomson-Reuters, I present a case that Counsel may be drawn into greater responsibility for tax law issues now that Social Insurance Number-sharing provisions have been introduced into the Citizenship Regulations.

In this piece, I want to look briefly at another issue which may affect Authorized Representatives as a result of the changes to the Citizenship Act and Regulations, the issue of ethical and professional liability and regulations that now allow for disclosure of wrongdoings from CIC to the regulatory body.

The Changes

As a result of amendments via the SCCA, The Citizenship Act now provides that it is illegal for an individual who is not designated as an authorized representative. to represent a Citizenship Applicant for consideration, whether this advice is direct or indirect.

18. The Act is amended by adding the following after section 21:
18. La même loi est modifiée par adjonction, après l’article 21, de ce qui suit :
Representation or advice for consideration
21.1 (1) Every person commits an offence who knowingly, directly or indirectly, represents or advises a person for consideration — or offers to do so — in connection with a proceeding or application under this Act.
21.1 (1) Commet une infraction quiconque sciemment, de façon directe ou indirecte, représente ou conseille une personne, moyennant rétribution, relativement à une demande ou à une instance prévue par la présente loi, ou offre de le faire.
Représentation ou conseil moyennant rétribution
Persons who may represent or advise
(2) Subsection (1) does not apply to
(a) a lawyer who is a member in good standing of a law society of a province or a notary who is a member in good standing of the Chambre des notaires du Québec;
(b) any other member in good standing of a law society of a province; or
(c) a member in good standing of a body designated under subsection (5).
(2) Le paragraphe (1) ne s’applique pas aux personnes suivantes :
Personnes pouvant représenter ou conseiller
a) les avocats qui sont membres en règle du barreau d’une province et les notaires qui sont membres en règle de la Chambre des notaires du Québec;
b) les autres membres en règle du barreau d’une province;
c) les membres en règle d’un organisme désigné en vertu du paragraphe (5).
(3) Subsection (1) does not apply to a student-at-law who offers or provides representation or advice to a person if the student-at-law is acting under the supervision of a person described in paragraph (2)(a) who is representing or advising the person — or offering to do so — in connection with a proceeding or application under this Act.
(3) Il ne s’applique pas non plus au stagiaire en droit qui représente ou conseille une personne, ou qui offre de le faire, s’il agit sous la supervision d’une personne visée à l’alinéa (2)a) qui représente ou conseille une personne, ou qui offre de le faire, relativement à une demande ou à une instance prévue par la présente loi.
Stagiaires en droit
Agreement or arrangement with Her Majesty
(4) Subsection (1) does not apply to an entity, including a person acting on its behalf, that offers or provides services to assist persons in connection with an application under this Act if it is acting in accordance with an agreement or arrangement between that entity and Her Majesty in right of Canada that authorizes it to provide those services.
(4) Enfin, il ne s’applique pas à l’entité — ou à la personne agissant en son nom — qui offre ou fournit des services relativement à une demande prévue par la présente loi si elle agit conformément à un accord ou à une entente avec Sa Majesté du chef du Canada l’autorisant à fournir ces services.
Accord ou entente avec Sa Majesté
Designation by Minister
(5) The Minister may, by regulation, designate a body whose members in good standing may represent or advise a person for consideration — or offer to do so — in connection with a proceeding or application under this Act.
(5) Le ministre peut, par règlement, désigner un organisme dont les membres en règle peuvent représenter ou conseiller une personne, moyennant rétribution, relativement à une demande ou une instance prévue par la présente loi, ou offrir de le faire.
Désignation par le ministre
Regulations — required information
(6) The Governor in Council may make regulations requiring the designated body to provide the Minister with any information set out in the regulations, including information relating to its governance and information to assist the Minister to evaluate whether the designated body governs its members in a manner that is in the public interest so that they provide professional and ethical representation and advice.

The above-language used in the SCCA suggested that further  regulations governing the conduct of authorized representatives would be introduced.

The new Citizenship Regulations now in-force (supplementing the corresponding SCCA changes to the Citizenship Act) provide those further details.

Among the Citizenship Regulations introduced are those which clarify that ICCRC-designated Immigration Consultants can advise on Citizenship for consideration. Also, there is clarification that any application where an Authorized Representative listed is not in fact authorized will result in applications being returned, unprocessed.


Purposes of subsection 21.1(5) of Act

19. For the purposes of subsection 21.1(5) of the Act, the ICCRC is designated as a body whose members in good standing may represent or advise a person for consideration — or offer to do so — in connection with a proceeding or application under the Act.

Person not authorized under subsections 21.1 (2) to (4) of Act

20. If an applicant is represented or advised for consideration in connection with a proceeding or application under the Act by a person who is not referred to in subsections 21.1 (2) to (4) of the Act the application will be returned to the applicant because it is not accepted into processing.

The new Citizenship Regulations also create that vehicle by which CIC can privately disclose to professional regulatory bodies such as the Immigration Consultants of Canada Regulatory Council (ICCRC) and provincial law societies, conduct which may raise ethical and professional concerns [emphasis added] (see full language of regulations: here).


26.1 If the Minister determines that the conduct of a person referred to in any of paragraphs 21.1(2)(a) to (c) of the Act in connection with a proceeding — other than a proceeding before a superior court — or application under the Act is likely to constitute a breach of the person’s professional or ethical obligations, the Minister may disclose the following information about that person to a body that is responsible for governing or investigating that conduct or to a person who is responsible for investigating that conduct:

  • (a) their name, postal address, telephone number, fax number and email address;

  • (b) the name of the professional body of which they are a member and their membership identification number;

  • (c) any information relating to that conduct, but — in the case of any information that could identify any other person — only to the extent necessary for the complete disclosure of that conduct.

Increased Risks

I believe this later provision may pose some risk to authorized representatives who advise on Citizenship.

For example, the ICCRC Code of Professional Conduct (here) contains several provisions regarding competency and quality of service. I don’t see anything preventing Citizenship and Immigration Canada (CIC) from disclosing to ICCRC poorly or incompetently filed applications or where a representative has failed to meet deadlines or Citizenship Act requirements. This could ultimately be used against the Authorized Representative, either if the regulatory body or an upset client decides to raise a complaint against the Authorized Representative.

What makes this challenging is that CIC ultimately stand on opposite sides of the coin when it comes to assessing an application. I’ve read of numerous occasions in case law where counsel for the Applicant takes a perfectly legal, but highly risky approach, on a file and CIC has taken a position against the strategy or approach is abusive or frivolous. The line between what is considered “incompetent” and what is considered “abusive” or “frivolous” is in my mind very thin.

Further interesting questions are also raised. Will the ICCRC inform the consultant immediately of any CIC report so that the consultant can fulfill his/her obligation to advise the client immediately on errors and omissions? Or will this mistake sit in the coffers of the ICCRC until the application is ultimately refused. How will such misconduct affect the Applicant’s overall case?

Of course, what I have pointed out is the extreme use of this disclosure mechanism by CIC. It is both impractical and imprudent for every non-competent act to be reported by CIC to the regulatory bodies and application refusal is the more likely option.

Furthermore, misrepresentation is likely the main “culprit” that this new regulation is aimed at. However, even the law of misrepresentation is not straight forward. For misrepresentation to be made out, there must be a finding that the direct or indirect misrepresentation was material to the Officer’s overall decision. Under the new regulations, for the disclosure to be made to the regulatory body only a “likeliness” that it violates the ethical or professional obligations of the representative is required.  A much lower standard.

Furthermore, what happens to the fact that ICCRC-designated consultants (this affects lawyers too) are prevented from disclosing who their clients are without their client’s consent or required by law. Do these disclosure requirements constitute an application of that exception that the client’s name can be openly disclosed to the ICCRC (or in the case of lawyers, law societies)?

A lot of questions, few answers, but definitely an area I am very interested in analyzing further. I don’t think similar regulations exist (as far as I know) for the Immigration and Refugee Protection Act. I can definitely see a “chill” felt by practitioners if this disclosure mechanism is in place though. While it may have some positive effects (reducing errors, frivolous and bound to fail applications) it may also be too much unnecessary, non-independent oversight that detriments client representation.

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