[Recorded by Electronic Apparatus]
Tuesday, November 7, 1995
.1002 
[English]
The Chair: I call this meeting to order.
Pursuant to Standing Order 108(2), we are continuing our study of immigration consultants.
With us today from the Law Society of Upper Canada are Richard Tinsley, secretary; and Ajit S. John, staff lawyer, unauthorized practice.
Gentlemen, you can begin when you're ready.
Mr. Richard Tinsley (Secretary, Law Society of Upper Canada): Madam Chair, I'm here on behalf of the Law Society of Upper Canada. I'm the secretary, which is one of the chief administrative offices of the Law Society. Mr. John, who is here with me, is the staff lawyer responsible for the area of unauthorized practice.
We have distributed some briefing notes. I apologize for the fact that they are brief, but they were put together on fairly short notice. Hopefully, I will be able to amplify those notes today and answer any questions that you may have arising from them.
The Chair: I appreciate that you did submit notes. We always appreciate that type of thing, even if they are brief. And we will have them translated for Mr. Nunez.
Mr. Tinsley: First a word about the Law Society. It is the governing body of the legal profession in Ontario. It is a self-regulating profession and has been since 1797. We have 26,000 members, 16,000 of whom engage in the private practice of law, providing legal services to members of the public in Ontario and across Canada. We're responsible for setting the entrance qualifications, educational requirements and ongoing licensing and disciplining of the legal profession in Ontario.
Following on that, we have code of professional conduct that sets out the ethical standards lawyers must adhere to in providing legal services to the public. Those are monitored by the staff at the Law Society. We have a discipline branch and a complaints branch staffed by lawyers who deal with ongoing prosecutions of lawyers who violate the standards of the Law Society.
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Our complaints department deals with complaints from members of the public. We had in the neighbourhood of 5,000 complaints last year, where we opened a file and engaged in correspondence with a member of the public and the lawyer. That is a large number, but when one considers the multitude of problems, it puts the number in some degree of perspective. In fact, the last year has seen a slight decrease in the number of complaints.
I give you that background in order to show you the regulatory scheme within which lawyers operate in Ontario.
I've had a chance very quickly to look at the submission of the Law Society of British Columbia. They emphasize the same type of regulatory framework and background of the legal profession in British Columbia, and I think you will find that across Canada the law societies in each province operate under roughly the same legislative scheme.
Turning now to the issue of immigration consultants, I would like to place it. From the perspective of the Law Society, this is one aspect of the issue of the licensing of paralegals.
The Law Society, under its act in Ontario, has the obligation to prosecute people for the unauthorized practice of law. Section 50 of the Law Society Act provides that:
- Except where otherwise permitted by law, no person other than a member of the Law Society
shall act as a barrister and solicitor.
I think the important seminal point in recent years in Ontario was the decision in the Pointts case. Pointts was a company set up to defend Highway Traffic Act tickets in Ontario. It was formed by a man who had been trained and had served for many years as a police prosecutor, prosecuting Highway Traffic Act cases for the Crown. When he retired, he started a company to defend.
The Law Society took the view that even though the Highway Traffic Act permitted people to appear by way of agent, the issue for determination was whether or not ``agent'' meant someone who did it on an habitual basis for money. After a long series of court cases, the court decided that, given the Law Society Act and several other acts that had to be read with it, the word ``agent'' did encompass someone who did it habitually and for money.
The important point that came out of the case was the decision of the Court of Appeal.Mr. Justice Blair said that this was a growing area of concern. The Pointts case came up in the early to mid 1980s, and there was beginning to be an upward pressure of non-licensed people doing various types of legal work.
Mr. Justice Blair said:
- It is the growth of independent paralegal businesses carrying on lawyer-like activities, free
from the direction and supervision of the legal profession, that elevates the public importance of
this issue.
He said:
- ...there must be concern about the absence of control over the education, qualification,
competence, and probity of all agents.
- No provision exists for disciplining or supervising agents and protecting the public from
financial loss arising from the improper performance of their responsibilities...
And later he said that unauthorized practice is not rooted in protection of lawyers or their incomes, but its primary purpose is to protect the public.
Going back to the Law Society's regulation of lawyers, we do have an insurance scheme that provides some financial compensation for members of the public who have suffered as a result of the negligence of their lawyers. The Law Society of Upper Canada and all law societies across Canada maintain compensation funds. They have different names, but basically it is a fund that has been contributed to by lawyers that is used to compensate members of the public who have lost money because of the dishonesty of their lawyers. In Ontario, we pay out $4 million or $5 million a year to members of the public who, through the dishonesty of their lawyers, have lost money.
So again, there is a comprehensive scheme both for the regulation of the profession and for the protection of the public, and as Mr. Justice Blair pointed out in the excepts I have just read you, that is lacking in the area of paralegals. Justice Blair ended his lengthy judgment with a call to the government for action. He said it was the responsibility of the legislature to resolve these issues of policy.
I think the court of appeal decision in the Pointts case was in 1987. Following on the Pointts case, the Ontario government appointed the Task Force on Paralegals, which was headed by Ron Ianni, a former dean and president of the University of Windsor.
The Law Society made some submissions to Mr. Ianni, and his report was published in 1990. He dealt with immigration consultants at pages 68 and 69 of his report. Their recommendation was that immigration consultants be allowed to continue to offer immigration services, not only in agency matters - that is, matters before the various tribunals - but in the consultative areas as well, such as applications for permanent residence and sponsorship. He recognized, as did the court in the Lawrie case, that many paralegals had developed significant expertise in the area of immigration consulting. He believed it was in the interest of ethnic communities to have access to advice that was readily available and at a reasonable cost.
It was important to note, however, that Dean Ianni prefaced his comments that they be allowed to continue to operate, with the proviso that it be under the registration system we propose. The regulation scheme he proposed was one that was propounded for paralegals in general, which was a scheme of regulation that Dean Ianni wanted to be the least intrusive possible while still protecting the public interest. His scheme envisaged a registrar of paralegals operating out of the consumer and commercial relations ministry of the provincial government. There would be rules and regulations governing the activities of paralegals, and standards would be set for good character, and education - he was looking at a two-year course of study in a community college - there would be fees paid to make the system self-supporting, and there would be standards of conduct set by the registrar.
So again, you have a report saying, yes, there is an area of expertise and experience out there that people should have access to, but there have to be some controls, some guarantees that those people are being well served.
The Law Society has seen its position alter over the years. Its early position, going back to 1981, in the area of paralegals and particularly in the area of immigration law, was that services ought to be provided only under the supervision of a lawyer.
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Immigration was not the only area of concern to the Law Society. The concern was also in regard to workers' compensation and the Unemployment Insurance Commission operations. The rationale put forward at that time was that, with those three areas, you were dealing with relatively unsophisticated clientele who were very vulnerable and were more open to abuses, and therefore that degree of supervision of a lawyer over the paralegal was required to ensure the public protection. That position basically remained unchanged.
There was a further report of the Law Society in 1983. Again, because of the history of abuses, they felt that although there might be an expansion in other areas of law for the activities of non-supervised paralegals, they did not see it in the area of immigration law. They put forward those areas in which paralegals would be permitted to operate, and you get the same shopping list of requirements that you see set out in the Ianni report: good character, formal training, a standard of professional conduct, CLE.
The Law Society was also urging in its position that there be an insurance and compensation fund scheme similar to that offered by the Law Society. Dean Ianni, on a fairly quick review because he was under some time pressure, would not go as far as to say that they required insurance in order to operate but that there should be some type of caveat or warning to the public that, in dealing with paralegals, they did not have some of the protections.
That took us to the next submission, which was made in 1989. It started from the principle that the paramount issue was that of protection of the public. The principle recommendations were that, aside from those practising within legislative exemptions and before administrative tribunals where the enabling legislation specifically provided that a person could appear by way of agent, there should be no expansion of the rights of audience for immigration consultants.
The Law Society also recommended at that time that administrative tribunals should establish certification procedures and formal requirements for education, training and regulation. I think at this point in time there was a realization that perhaps the governments were not going to move as quickly to regulation and were looking about as to some ways to bring some sense of order to some of the areas. It was recommended that the tribunal, which always has an inherent jurisdiction to determine who will appear before it, should start to set meaningful requirements and criteria.
That position basically remained the same until June 1992. In June 1992, I think you see a significant change in position for the Law Society. Up until now, in the three reports I've just mentioned, we had taken the position that because of the particular nature of the clientele in immigration matters and the severe consequences to the public of any mistakes or errors - that is, a loss of status and possible deportation - they ought to be strictly controlled, and we felt that control should properly be under the supervision of a lawyer.
In 1992, a committee reviewed the Law Society's position and divided immigration and refugee work into four basic categories: applications for admissions from outside; applications made in Canada for immigration or refugee status, including appearances before adjudicators and the immigration and refugee boards; appearances before the appeals division; and appeals to the Federal Court.
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In coming to its conclusions on those four issues, the committee consulted widely with the immigration bar, particularly in Toronto, and with members of the board and other social agencies involved in providing counselling services to the immigrant population.
They concluded, with regard to the first, which was applications for admissions from outside, that paralegals should be allowed to provide that without the necessity of supervision. They also concluded that the second and third, which were applications made from outside Canada and appearances before various committees and tribunals, up to appeals to the Federal Court, could also be dealt with by unsupervised paralegals, provided that there was an adequate system of training and certification in place. As to the fourth, which was the appeals to the Federal Court, they felt that because of the nature of the application, it was strictly within the purview of the members of the law society or a bar in Canada.
As I say, those recommendations were based on the assumption that there would be the introduction of a satisfactory scheme of education, training, regulation and discipline. The committee is inclined to recognize that unsupervised paralegals be allowed to carry on consulting and agency appearances. As an aside on that point, I think it's a change in position that perhaps may have, to a large extent, escaped some of the people who work in the area.
I point out that the Organization of Professional Immigration Consultants, page 3 of their brief that I believe was submitted on May 29, 1995 to the committee, states:
- Although studied extensively, provincial law societies have rejected the idea of taking
responsibility for administering the conduct of paralegals.
The immigration consultants' brief goes on to say that:
- In general it can be said that the various provincial law societies and bar associations have taken
aggressive positions, invariably in the name of ``public interest'', which would essentially bar
paralegals from practising (unless employed by a law firm).
Unfortunately, we have had lawyers who have taken advantage of the immigrant population. We have disciplined those where the matter has been brought to our attention. As I say, there are other recourses for members of the public: there is our insurance fund, where there is an area of negligence; there is our compensation fund.
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I will not take any more of the committee's time. I will answer questions, but I want to emphasize that we have modified our position. Throughout, our main interest has been the protection of the public. And as we have delved into the issue and seen that there are ways the public can be protected without the involvement of lawyers, we've moved our position to realize that.
We are still concerned, however, that there may be a large number of people out there who are receiving inadequate services, and we would like to see some type of regulatory scheme in place to ensure that those members of the public are protected.
In our brief we have outlined, as the Law Society of British Columbia has done, some of the typical types of cases that we receive at the Law Society that we are powerless to act upon - cases of bad advice and cases of fraud. We are in the same position that we were nearly ten years ago when Justice Blair called upon the legislature to bring in standards. It has not happened in Ontario. We are still in the position of having to turn people away. You can report it to the police, but unfortunately we do not have the authority to take on the investigation of people who are not members.
Mr. John deals with the members of the public and the complaints process. If anybody has any questions about that, I'll defer to him. I think the emphasis that we wanted to leave with you is the need for regulation in the public interest.
The Chair: Thank you, Mr. Tinsley. We share your concern for the public. I think that's why we're here today.
[Translation]
Mr. Nunez, please proceed.
Mr. Nunez (Bourassa): Thank you, Mr. Tinsley and Mr. John. You have made a very interesting contribution.
This is a complex and serious problem. There are several points we have to look at. You have mentioned a few of them: the fact that lawyers' fees are sometimes very high, the fact that many immigration consultants have acquired expertise, and the shortage of government officials working in this area. This latter problem is getting worse, since there will be a further 20% cut during the coming year in the number of public servants working in central and regional immigration.
My first question is of a constitutional nature. It deals with the regulatory system for licensing the professions and provincial jurisdiction. We are members of a committee of the House of Commons, and the federal Parliament is only partly responsible for immigration, because this is a shared jurisdiction. How do you see these problems? What is the role of the federal government in regulating the profession of immigrant consultant?
[English]
Mr. Tinsley: First of all, I'd like to address the issue of cost. I may have left the impression that legal services were prohibitive in cost. That is not the case. There is a wide spectrum of members of the legal profession offering immigration services. Some provide services to people who wish to come in and establish businesses, but there are also a large number of the bar in Ontario who provide services through the legal aid system to refugees, the people who are most in need of services. There are also clinics set up under the provincial legal aid plan to assist people. So I really don't think the question of access is one of cost at this point in time. If I left you with that impression, I apologize.
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As to the constitutional issue, that is briefly addressed in the brief of the professional immigration consultants. I think we would agree that it's a shared jurisdiction, but I think we would go on the basis that if the provincial government is not going to regulate in the area, it would be open for the federal government to do so, relying again on the ability of the tribunal to determine who will appear before it and what standards they should meet.
So I agree that it's a very complex area and one that needs to be canvassed thoroughly with the provincial governments. I think our position would be to urge that this consultation at least commence with a view to bringing forward some resolution that is satisfactory to everybody.
[Translation]
Mr. Nunez: I would like to come back to the costs of legal services. In Ontario, several organizations defending the interests of refugees complain that cuts to legal aid will affect many refugees, and this seems to be the situation already. This will probably open the way to more involvement by immigration consultants. Do you think that these cuts to legal aid in Ontario could affect refugees?
[English]
Mr. Tinsley: I think we will be in a better position to determine that issue after December 4 and 5. I say that because the Law Society has commenced an application to the court for a determination on the provincial government's responsibility to fund legal aid.
You are probably referring to the withdrawal of services in one or two criminal matters in Ontario in the last couple of months as a result of statements made by the provincial government regarding future funding of legal aid. It is an area of concern. We have commenced the action to determine the limit of the provincial government's responsibility to fund legal aid.
If there is a dramatic reduction in the funding of legal aid, obviously it will have an effect on all areas of the law, people who require criminal assistance, as well as immigrant people. Unfortunately, in Ontario right now we are in a state of flux with regard to legal aid, and we will have to monitor that carefully.
[Translation]
Mr. Nunez: You said that complaints had been made to the disciplinary committee. You mentioned approximately 5000 complaints. Have you received any complaints specifically about immigration consultants and illegal practice of the profession? Has the Law Society taken legal action concerning illegal practice of the profession or fraud? If such cases do exist, could you give us some specific examples?
[English]
Mr. Tinsley: I'll allow Mr. John to reply to that.
Mr. Ajit S. John (Staff Lawyer, Unauthorized Practice, Law Society of Upper Canada): The question is a good one. The Law Society receives a lot of complaints about immigration practitioners. The Law Society can only do something if that practitioner has held himself or herself out to be a barrister and solicitor or a lawyer. If they don't hold themselves out to be a lawyer, there's nothing the Law Society can do.
If it is a matter of fraud, we suggest the complainant go to the police and investigate it that way. It is only when the immigration consultant is doing something that only lawyers should do or if they hold themselves out as a lawyer that we can do anything. That is the reason why, as Mr. Tinsley said, the Law Society asks for regulation of consultants, because the Law Society can't do anything.
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Mr. Nunez: Could you mention some specific cases?
Mr. John: In the brief, which unfortunately hasn't been translated into French, there are five examples.
[Translation]
Mr. Nunez: As regards problems with consultants abroad, how serious is the situation? Which countries are we talking about here? What can you do to resolve the problem, given that this is a situation taking place in other countries?
[English]
Mr. Tinsley: As the Law Society we really have not turned our minds to that problem because it is clearly out of our jurisdiction. We are concerned with the people who are providing advice to the members of the public in Ontario. Those issues are addressed by the association of immigration consultants.
As a law society the only time we've dealt with it would be in terms of our members, lawyers, going to Hong Kong or Singapore and offering advice. In those circumstances they are still bound by our rules of professional conduct and have been disciplined for conduct taking place outside Canada. As to the actual immigration consultants who are not members, we have not addressed that problem
The Chair: Ms Meredith.
Ms Meredith (Surrey - White Rock - South Langley): I have just one concern with your presentation. I know you've tried to distance yourself somewhat, but there would seem to be this conflict of interest or what one might consider to be a takeover bid, where the law profession is seeing immigration consultants who are not lawyers as being competition and it is trying to clear the field.
Having said that, I want to get more specifically into how you as a law society discipline your members if you find them in violation of the standards that are set. How many of the 5,000 complaints in the Law Society, in your purview, are immigration complaints?
Mr. Tinsley: I've got to disagree strongly with you that we are trying to clear the field. If anything my presentation reveals exactly the opposite. We have moved from a very restrictive approach back in the early 1980s of saying no person can offer immigration services except under the supervision of a lawyer to the point where we are now saying we recognize there is a body of people out there with the expertise and the experience and we are quite satisfied they can provide immigration services.
We are concerned about the people who are offering services without any training and without any experience. In that sense it is not an issue of protection of the lawyers' interest but protection of the public, particularly, as I say, when you see the results of some of the cases where, because of bad advice, people have been deported. They have gone back to regimes where they may be in great danger. That is not based on the lawyer's pocketbook. That is based on our concern for the public and the level of services they are being provided.
Turning to the second part of your question, of the 5,000 complaints I would say about 150 break down into what we call administrative law, and in administration law that includes immigration about 50. I should explain that those 5,000 complaints are - and I'm not trying to belittle it - relatively minor matters we can resolve by acting as the intermediary between the lawyer and the client. It's miscommunication. The lawyer is busy and hasn't replied; they write the Law Society and say they've written their lawyer three times, she hasn't replied, and ask what we can you do; and we get in touch with the lawyer. We do a lot of telephone mediation. Basically, it's a communications problem.
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In terms of actual prosecutions, we have prosecuted lawyers. There is a provision in the rules of professional conduct that says a lawyer must be competent to practise in the area in which he or she practises and gives advice to the public. There have been two or three cases in the immigration law area where we have looked at the advice given by lawyers and have concluded that it fell below the standard. Those lawyers have been disciplined. Mr. John may have specific details of them. But we do take the obligation seriously.
The Chair: Mr. John, can you add to this?
Mr. John: Yes, I can briefly give you some examples of the Law Society discipline of lawyers who practise in the immigration field.
In one case, it was a question of using the interest on the money that was held in deposit. He had used that interest for his own purposes. So it was really a misappropriation of funds. In another case, it was a mismanagement of the legal aid bill or the legal aid fund. In another case, the lawyer had counselled the clients to swear false affidavits about their religious affiliation. I think these were Jehovah's Witness cases from Portugal. Another case was of counselling false evidence again.
The one case that would probably be of most interest and which Mr. Tinsley referred to was a case in which the lawyer had given service that was so negligent that it threatened the security of the person. Because it was so serious, the Law Society said it was going to discipline the lawyer.
So the Law Society looks at discipline in all these various areas, administration of funds, misuse of legal aid and really gross negligence that affects the security of the person.
Ms Meredith: I'm just a little concerned where you put gross negligence above misrepresenting the facts. Is fraud not a criminal offence? Would not a lawyer misrepresenting the facts or encouraging somebody else to misrepresent the facts be committing a fraud, something very serious?
Mr. John: We do take that seriously and that would be a disciplinary matter.
Ms Meredith: So when you talk about a disciplinary matter, how does the Law Society discipline its own people? Can you discipline properly people under your purview? If you can, what regulations need to be put in place for consultants? As I understand the situation, you would have to establish a society or an organization of immigration consultants who would have to establish similar rules to yours. So how do you discipline people within your organization? How would you expect this other consultation community to discipline and to supervise its people?
Mr. Tinsley: Discipline is really a matter of regulation. We receive a complaint. The matter is investigated. If we feel it falls below the level of standard of service or it violates one of the other rules of professional conduct and amounts to civil or criminal fraud, then we prosecute the person. We lay a formal complaint. We have staff prosecutors at the Law Society. There's a hearing before three members of the governing body of the Law Society, and they can impose varying sanctions.
Some of the sanctions can vary from a reprimand in committee, where the person is told he's violated the standards. This is a first offence. We expect him not to do it again. There might be conditions: we think he should go off and take an educational course. As a matter of fact, we think he shouldn't take any more cases in immigration, he might not do any more house deals, or he might not do any more family law until he's taken an appropriate continuing legal education course and brought himself up to standard.
In more serious cases where fraud is involved, the person's licence is at stake. We can disbar that person, deprive him of the right of earning a livelihood as a lawyer.
Ms Meredith: Do you?
Mr. Tinsley: Yes.
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Ms Meredith: So then, as I understand your presentation, you're suggesting there needs to be a provincial concern raised here. There needs to be an association of immigration consultants who have certain requirements for education and training, certain requirements for perhaps an insurance or compensation fund.
Again, as I understand it, all of this is a provincial consideration. But in essence that is what you're suggesting, is it not?
Mr. Tinsley: That is one way of approaching the problem, setting up a self-governing organization. Another way is merely to set up a registrar.
In Ontario there are several businesses that carry on under a registrar; for example, the travel agents. There is a registrar...I forget the exact title. They pay money into a compensation fund so that when a travel or tour company goes bankrupt and people are left stranded, there is a fund of money the government can use to get it back. And They set the education standards.
It doesn't necessarily have to be a full-blown, self-regulating profession. It can be done administratively through existing government departments.
Ms Meredith: You're suggesting they could almost go to a bond issue, so that anybody practising would have to put in a $100,000 or $200,000 bond in order to protect the public?
Mr. Tinsley: That might be one of the requirements. It certainly is in some of the other organizations and businesses in Ontario.
Ms Meredith: Thank you.
The Chair: We'll be back. Ms Clancy.
Ms Clancy (Halifax): Welcome. Thank you for coming. I'm not certain if it was clear that there can be a criminal prosecution. I think the word ``prosecution'' might have been a bit confusing. A criminal prosecution can arise from the same set of facts that would galvanize the Law Society's disciplinary committee.
Mr. Tinsley: That's correct.
Ms Clancy: I would like to mention a couple of things and perhaps meander into the somewhat dangerous area of the Constitution.
You mentioned the fact that you don't see anything that would preclude the federal government if the provinces didn't move into this field of regulation.
I wonder if you would expand on that - and this is the situation as it strikes me - given that in the provinces of Ontario, British Columbia and Quebec, obviously there is sufficient activity to warrant this kind of regulation. There is probably not a lot in the provinces of Nova Scotia and Prince Edward Island.
I'm wondering if you think - and go ahead, I dare you - we could move federally on this without creating a constitutional difficulty.
A voice: Oh, oh!
Mr. Tinsley: I suppose the simple answer is that if one believes in asymmetrical federalism -
Some hon. members: Oh, oh!
Ms Clancy: Oh, don't start!
Mr. Tinsley: No, I really don't think it's appropriate for us to get into that area. At the law society level we are really concerned with having some form of regulation of these activities. Quite frankly, we don't really care who does it or how it's done. We just would like to see it done.
Ms Clancy: Then let me go into your brief. I was interested in the first page where you quote section 69 of the Immigration Act, and you refer to the problem created by the lack of definition of ``counsel''.
I would gather then that going to the usual sources - law dictionaries, judicial notice of various terms, etc. - does not narrow this word to actual members of the bar.
Mr. Tinsley: I think that's correct. Also, it's not so much the interpretation we put on it, it's the use that the people who are practising as immigration consultants put on it.
They put ``immigration counsel'' on their business cards. In some of the ethnic communities particularly, where they have a law degree from the home jurisdiction, they will put their law degree and then put ``immigration consultant and counsel''.
I think the popular meaning most people give to the word ``counsel'' is lawyer. As I say, unfortunately you are dealing with a fairly unsophisticated population in terms of their awareness of the Canadian legal system and society.
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Ms Clancy: And therefore, presupposing that the resources were available, you wouldn't be able to get to prosecute for fraud? You really don't have the evidence to sustain a fraud conviction.
Mr. Tinsley: That's correct.
Ms Clancy: The other thing I wanted to ask you about was actually the word ``lawyer.'' Under the Law Society of Upper Canada, is it sufficient for you people to swing into action if someone really calls himself or herself a lawyer, or do you have to use the term ``practising'' or ``member of the bar?''
Mr. Tinsley: There's a lot of case law on that issue, and it depends on the attendant circumstances, whether you're practising or holding yourself out as a barrister and solicitor. If you tell someone you're a lawyer in the context of leading them to believe you are taking some action that normally would be done by a barrister and solicitor, we catch them.
Ms Clancy: Okay. The other thing I wondered about concerns the levels of complaint. Would it be fair to say that the actual number of complaints you receive might well only be the tip of the iceberg because of two things: those people who have lost may well be gone, and secondly, others who aren't gone might be too afraid to complain, again because of the low level of sophistication or comprehension of the system?
Mr. Tinsley: I'll let Mr. John amplify on that, but I think from my perception that would be true. From my own experience, earlier in my career when I was involved more actively in prosecutions than I am now, there were one or two cases where there was a great reluctance on the part of the victims to come forward.
Again, they thought it would jeopardize whatever standing or status they had. It is a problem because people feel that if they come forward, somehow they are going to jeopardize it. In one or two cases we've been approached by people asking, will you give me immunity? We are not in a position to make that promise.
Ms Clancy: Just before Mr. John answers, I just want to say that I really do believe our problem is much more with the unregulated than with members of the bar, but I thought that was a point worth making.
Mr. John: I don't have anything to add to this, Madam Chair.
I think you've expressed it very well. They have either gone from the country, or are so frightened and don't know the judicial system very well that they don't come forward.
The Chair: Thank you.
Mr. Assadourian.
Mr. Assadourian (Don Valley North): Thank you very much. Correct me if I'm wrong, but did the Ontario government not state a couple of months ago that they will cut all legal aid services to refugees? Am I right?
Mr. Tinsley: I don't think that statement was made by the government. One of the issues in Ontario right now with regard to legal aid is not only the province's responsibility to provide funds but also the cost-sharing arrangements with the federal government.
As part of that debate there have been statements, and I'm not sure they were by government or they were made by people who had been involved in the general debate about legal aid. They said, well, if the federal government is going to cut back the level of funding, then perhaps one of the areas that ought to be cut back is immigration law, which is currently funded by legal aid.
I would not want to state that it was a government official who made that statement; I'm just not sure.
Mr. Assadourian: There is another point I want to bring to your attention. Seneca College in North York has some kind of courses for individuals who want to get into this immigration consultant business.
I wrote them a letter a few months ago asking them to issue a certificate, the way they do for real estate agents. In their letter they told me they are in constant contact with the provincial government to do so. Do you know anything about that?
Mr. Tinsley: Yes, several community colleges in Ontario - and Seneca is probably one of the two or three that have been in the lead - have been trying to develop various paralegal courses in the areas of real estate, immigration law and company law, to train people.
They have been hoping, and working with the government, to get recognition so that if you graduate from a two-year community college course, you would automatically receive certification as a licensed paralegal.
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That goes back to one of the recommendations Dr. Ianni made in his report. One of the entrance requirements he saw as being a prerequisite was a two-year community college course.
I know Seneca has been very active in promoting that. I'm not sure where they are in their negotiations with the provincial government right now.
Mr. Assadourian: I have one final point. Lots of discussion is taking place between federal and provincial governments to give provincial governments more authority in the immigration field.
Would you suggest one of the things to be discussed is that the federal government should give the provincial government the authority to regulate immigration consultants once and for all? There are arguments going back and forth where one says, it's not my problem, and the other one says, no, it's your problem.
Can this argument be resolved once and for all so we say the provincial government has the right to regulate immigration consultants in the same way it regulates real estate agents?
Mr. Tinsley: Again, it's an issue on which we as the Law Society would not take a position unless we had specifically studied that issue and come to the conclusion that there was an advantage or disadvantage. Our main concern is that there be some form of regulation.
The Chair: Thank you, Mr. Assadourian.
Are there any other questions on the opposition side? Monsieur Nunez? Rose-Marie Ur, please.
Mrs. Ur (Lambton - Middlesex): I have two quick questions, Madam Chair. Not being a lawyer, my questions won't be as challenging as those of my honourable colleague sitting next to me.
Have lawyers seen a significance in the decreased numbers in immigration cases since consultants have come into existence?
Mr. Tinsley: I'm not sure I can answer that question. That's one that would have to be put to practitioners in the area.
There certainly has been an increase in the number of consultants operating. You can see that merely by looking at the classified ads in The Toronto Sun or The Toronto Star. The columns that are now devoted to paralegals and immigration consultants have expanded.
So to the extent that there has been an expansion in the number of consultants offering their services to the public, I guess it follows that there must be a concomitant decrease in the number who are going to lawyers. I mean, if there's only a certain number of people to go to a pool of business and it's divided among a greater number of people....
Mrs. Ur: The Ianni report concluded that notwithstanding the increasing number of lawyers willing to practise immigration law.... In that statement, do you have a reason why there's more interest in immigration law? Perhaps it's the change in format for lawyers willing to go into that field.
Mr. Tinsley: I think it really has more to do with the demographics of people coming into the country. For a long period immigration was not an area of law in which people were able to get experience.
During the 1970s and 1980s, when we saw an increase in the number of immigrants coming to Canada and coming from non-traditional areas of immigration, with the problems they had in terms of satisfying Canada's requirements, the expertise started to develop. People saw it as an area where one could get a practice going and make a living, rather than just having it be a small part of an otherwise general practice.
Mrs. Ur: I have two quick questions. Do costs come into consideration when immigrants make the decision whether to seek out a lawyer or a consultant? Is that the difference?
Mr. Tinsley: It may be. It's very hard to quantify. One of the things we see, particularly in the ethnic communities, is that it's more an issue of going to someone with whom they feel comfortable, someone who is in their community, speaks their language and knows their background. A lot of immigration consultants work through a network of contacts within the local community.
As to cost, we see the results of the cases that have gone wrong. In those cases, the fees charged by non-lawyer immigration consultants are the same as or even greater than those charged by lawyers.
A lawyer, in rendering an account, knows that account can be taken to a court official by the client. The court official will review it, and can say that's too much, or he's going to knock off this or that amount. So there's an external control over the lawyer's accounts. There's no control over the fees charged by immigration consultants.
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Mrs. Ur: Are they in proportion?
Mr. John: It's very hard to tell. My impression is that cost is not a factor, and that the governing factor is really the connection to the ethnic community. There's a great deal of trust that people who are vulnerable in those ethnic communities put in other members of their community, and cost doesn't seem to be a factor. We've seen up to $30,000 paid to immigration consultants with no work done.
Mrs. Ur: If cost isn't a factor, is there something - not that the image of a lawyer is inappropriate - that can be done differently so that they feel more comfortable going to a lawyer rather than to a consultant, so that they would feel more open speaking to a lawyer than to a consultant? It was indicated that they might feel more comfortable going to a consultant because of their ethnic background. When you hear the term ``lawyer'', sometimes an image is put into place.
Mr. Tinsley: I think the Law Society has taken several initiatives in that area. One is making sure that our information brochures and pamphlets on immigration law are available in various languages so that people have access to the information. Under the aegis of the clinic funding program, which is a division of the legal plan administered by the Law Society, we have also started immigration clinics that deal with specific ethnic groups, so they have access through that.
I think the profession itself has made every effort to make themselves accessible to the ethnic populations. A lot of the immigration lawyers train people in the ethnic community themselves, and make sure they have translation services available. I think there has been a great recognition in the profession of the need to make services readily available, and I think by and large we're meeting that challenge.
Mrs. Ur: Do you feel there's room for both? For instance, if consultants worked to a certain level and then once it goes in front of the courts, the lawyers.... I don't know whether that would be two bureaucracies.
Mr. Tinsley: I think that's the position we've come to in saying that there are certain consulting services and agency work before the lower-level tribunals that can be done by immigration consultants. The Federal Court work that involves the actual filing of documents in court, argument preparation, affidavits and things like that, we think ought to be within the ambit of the lawyer. But yes, we definitely see that there is room for both of us to work.
Mrs. Ur: Do you think you'll ever be able to be on a working-relationship level playing field and bring the consultants in, working amicably with lawyers?
Mr. Tinsley: If you look at the successful immigration lawyers, most of them have talented teams of immigration consultants working with them. Henry Goslett, who works in a large law firm in downtown Toronto with Frank Marrocco, one of the leading counsel.... Henry is only one of about four or five paralegals Frank has working with him.
Lawyers are not only working with employed paralegals, they also have relationships with independent consultants. The more reputable independent consultants will have relationships with lawyers to whom they will refer work when it gets beyond where they can go with it.
The Chair: Ms Clancy has one short question and then we will go on to our guests in Vancouver.
Ms Clancy: I'm very interested in what you said about immigration clinics. Do you have any written information that you might be able to send to us?
Mr. Tinsley: Yes, I can.
Ms Clancy: Thank you.
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The Chair: I'd like to thank Mr. Tinsley and Mr. John for coming and enlightening us and presenting a brief. We appreciate it very much and hope to see you back at a future date. Thank you.
Ladies and gentlemen, we're going to go to the future now. This is the first time, actually, that we're going to be doing this as a committee, so everybody's going to have to bear with me, also, at the same time.
Can we be heard now in Vancouver? Good morning.
A voice: Good morning.
The Chair: Welcome. I know it's very early in the morning over there. If you wouldn't mind, could you perhaps introduce yourselves. I do have a list of witnesses, but I would like to welcome the members of the Law Society of British Columbia to the Standing Committee on Citizenship and Immigration.
Welcome, and would you like to introduce yourselves.
Mr. Benjamin Trevino, Q.C. (Assistant Deputy Treasurer, Law Society of British Columbia): Thank you, Madam Chair. My name is Ben Trevino. I'm a bencher of the Law Society, and chair of the Law Society's multicultural committee.
I'd like to introduce Mr. Jerome Ziskrout, who is deputy secretary of the Law Society and a staff resource to the multicultural committee. Mr. Ernest Brydon is one of the Law Society's full-time investigators. Mr. Paul Winn is a staff resource to the multicultural committee. And Ms Bev Nann is executive director of AMSSA, not a lawyer, but a very valued member of the Law Society's multicultural committee as well.
The Chair: Thank you very much, and welcome. We'd like to thank you for your brief also. You can begin.
Mr. Trevino: Thank you very much, Madam Chair. I will try to summarize our brief, and at the end of our presentation and whatever questions you may have with us, Bev Nann would like a few minutes on behalf of AMSSA.
The Law Society's interest in this issue is based on its statutory mandate to protect the public interest. The section of the Legal Profession Act that makes that public interest paramount is quoted in our submission and our brief.
To put a context to all this, perhaps I can spend a little bit of time telling you what the Law Society is and why it is interested in this issue.
The Law Society has existed by statute for over 100 years in this province. Its mandate is to protect the public interest and to have that as its paramount interest in the regulation of lawyers.
It receives no funding from government but operates on the basis of mandatory dues received from all members of the legal profession. It spends a great amount of money, first of all, at the intake end to ensure that people who practise law are qualified educationally and are of good character and repute. Without those two primary criteria being satisfied, people do not enter the legal profession.
After people are admitted to the bar, the Law Society is required to investigate any complaint made about any lawyer, whether the complaint has to do with a breach of ethical conduct, or whether it has to do with competence. So over $2.25 million of members' money is spent in the review of people's criteria coming in, and the regulation of lawyers once they become lawyers.
The Law Society has the power to discipline lawyers who are guilty of unprofessional conduct, ranging from reprimand to disbarment. It also has the power to require members who have become incompetent in any area of law that they accept a retainer on to become fully competent in that area of practice.
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So in that context now we turn to the issue of immigration consultants. The Law Society has received over the years, as our brief stipulates, many complaints about people who practise as immigration consultants. Our difficulty is that most of them are not lawyers. We therefore have no jurisdiction with respect to those peoples.
By virtue of these complaints, we have come to know and to experience the tragic circumstances sometimes visited upon the most vulnerable of people by consultants who hold themselves out to help them for a fee and then don't follow through either by reason of lack of uncaring or simply by reason of not being competent in what they undertook to do. Some of those incidents are also mentioned in our brief.
The submission you have before you was generated initially by the multicultural committee's subcommittee on systemic discrimination. That subcommittee took the view that the non-regulation of people who hold themselves out to be immigration consultants and who take a fee for that work is a form of systemic discrimination against those who are most vulnerable.
People who are not experienced with the Canadian legal system come to this country often with cultural imprints from the country they left. They often see lawyers as agents of government, which often is a system that is corrupt in itself, and do not know where to turn. It is tragic to say that many of these people are often victimized by members of their own ethnic community.
In any case, the Law Society's interest is not so much that only lawyers do immigration work but that those who purport to work in the field and to take a fee for that are competent in the field, of good character and repute, bound by some code of ethics, or law, or regulation to carry out the work they took a fee to do, and that the work be carried out competently with expertise in the field and reasonably in terms of cost.
You may know that a lawyer's client who is dissatisfied with the fee has a right to have that fee taxed before a registrar of the supreme court. You may know that a lawyer's client who is dissatisfied with the lawyer's work can complain to the Law Society and the Law Society has jurisdiction in that respect. You will know that a lawyer's client who is concerned about a lawyer's competence may have that issue addressed by the Law Society. To repeat myself, the Law Society is bound to investigate each and every complain.
In the case of lawyers the Law Society has jurisdiction. In the case of non-lawyers the Law Society has no jurisdiction, and we find ourselves frustrated by being unable to help people who have been victimized. We also find it bitterly ironic that lawyers who are sanctioned by the Law Society, who may be suspended from practice or disbarred for reasons of professional misconduct, breach of ethics, end up practising as immigration consultants with no regulation whatsoever.
Our brief contains greater details, which I don't want to bore you with. We will be prepared to answer any questions you may have with respect to investigating people who seek to be called and admitted to the bar, with respect to regulating people who have been called to the bar. We find that totally absent in the present regulator scheme with respect to immigration consultants. Again, these are people who are serving the most vulnerable population within the country.
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The present system does no good to the reputation of Canada, either internally or externally, because many of the immigration consultants operate both within and outside Canada. There is no regulation, no assurance of confidence and no mechanism for preventing immigration consultants from charging exorbitant fees.
Now, with that, Madam Chair, if you have any questions, we'll be pleased to try to answer them.
The Chair: Thank you very much, Mr. Trevino.
I will begin with Mr. Nunez.
Do you have translation services, Mr. Trevino?
Mr. Trevino: No. English is sufficient, Madam Chair, if that's all right with you.
The Chair: Mr. Nunez is going to ask you a question in French. Are there no translation services?
Mr. Trevino: No. There are none here.
[Translation]
The Chair: Mr. Nunez, would you like to ask your question in English or would you like me to translate?
[English]
Mr. Nunez: I will try in English.
The Chair: Mr. Nunez will try in English, then.
Mr. Nunez: I don't understand why I cannot speak in French.
The Chair: We apologize for that, Mr. Nunez.
Mr. Nunez: Thank you for your contribution. It was very interesting. You see we are facing a very serious problem with the immigration consultants. It seems to me you very strongly disagree with the immigration consultants.
Could you tell us how grave the problem is in British Columbia. How many immigration consultants come from the law profession or were immigration agents before? I know British Columbia is accepting more and more immigrants and probably the problem will become even more serious in the future. Could you tell us the composition of the immigration consultants?
[Technical difficulty - Editor]
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Mr. Trevino: Mr. Nunez, despite the sound difficulties, I believe I have the general nature of your question and I will try to answer it.
The problem in British Columbia is somewhat difficult to define. As stated in our submission, there are over 41 immigration consultants who are not lawyers and who advertise in the yellow pages of the telephone directory.
The extent of the victimization or extortion in respect of fees is purely anecdotal, based on complaints made to the Law Society about immigration consultants. Bear in mind that one has to ask oneself why people would come to the Law Society to complain about immigration consultants who are not lawyers. What we discovered in those cases is that, in one way or another, the clients of some immigration consultants have come to believe they are in fact legally trained. We know some of the immigration consultants in British Columbia have offices here and either have offices or travel occasionally offshore to places like Hong Kong to advise there.
We have no real idea of the volume of people being served or purportedly served by these immigration consultants, so there are a lot of unknowns that come to us only by virtue of complaints made to the Law Society.
Does that assist you, sir?
Mr. Nunez: Yes.
My second question is about the Constitution. As you know, the regulation of professions is under provincial jurisdiction and here we have a federal committee. So how do you see this problem, especially noting that immigration is a shared jurisdiction between the federal government and the provinces? What would be the role of this federal Standing Committee on Citizenship and Immigration in order to study and to propose recommendations to the federal government? How do you see this problem?
Mr. Trevino: I think we would submit, Mr. Nunez, that clearly the federal committee has jurisdiction in this area. We would see either a regulation or an amendment to the act to empower the committee or a body of it to set up requirements similar to those that are in our submission with respect to lawyers, first of all, to certify that people practising in this area are in fact competent in it and are people of good character and repute, and secondly, to regulate the competence and the billings of immigration consultants.
Mr. Nunez: My other question is about the cost of legal services. Many immigrants and refugees cannot afford to pay lawyers and sometimes they go to see an immigration consultant. You mention in your brief that even some immigration consultants ask high fees. But in my opinion many of the witnesses who came here said that the high cost of legal services is one of the problems. How do you see this problem?
Mr. Trevino: The evidence we have so far indicates that immigration consultants charge a minimum of $1,500 for the preparation of the simplest forms. The maximums we don't know. The evidence we have indicates that a lawyer's fees would in fact be substantially less than the minimum fees being charged by immigration consultants.
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Mr. Nunez: Do you have a study? Are you sure of that? The evidence is contrary to your speech.
Mr. Trevino: I don't want to overstate the case for you, Mr. Nunez. You will appreciate that such evidence as we have comes only from complaints by people who come to the Law Society saying they've been done wrong or haven't been well served by this immigration consultant. So our evidence is limited.
Such evidence as there is indicates there is a minimum fee being charged of at least $1,500 for help in preparing the simplest forms and documents to get into the process. Our evidence, such as it is, is that lawyers would in fact be cheaper.
Secondly, and most importantly, immigration services are acceptable to legal aid, which means there would be no charge. If the immigrant or the client fits the other requirements for eligibility for legal aid, then legal aid recognizes immigration work as one of those areas that legal aid serves. The result of this is that there should be no inhibition for a client who qualifies for legal aid to receive legal aid with respect to immigration matters.
Mr. Nunez: It seems you want to eliminate this profession. I don't think it will be possible. In Australia they have a similar problem and they decided to regulate this profession to install a certification process about immigration consultants. Do you know the Australian experience? Do you know the American experience or other ones?
Mr. Trevino: No, we don't, sir. I want to be clear that we are not seeking the elimination of any profession. We are seeking the assurance that people who practise this profession are competent and in fact do the work they are contracted to do. We are not seeking the elimination. We are seeking the appropriate regulation so that these most vulnerable people are well served by whoever it is who serves them.
The Chair: Thank you, Mr. Nunez.
Ms Meredith, please.
Ms Meredith: Welcome.
I want to follow up on a couple of comments you made. One of them is the licensing provisions. You implied that the licensing itself and the controlling regulations of immigrant consultants should be federal. My understanding is that licensing and regulating lawyers is provincial. I know from my own experience that licensing and regulating real estate agents is provincial. Why would you see that licensing and regulating immigration consultants should be federal as opposed to provincial?
Mr. Trevino: Clearly, in our view, the federal government has the primary responsibility for immigration, constitutionally. Therefore it is, in our view, the federal government's responsibility to set up, by whatever process, a certification procedure that people must meet and a regulatory procedure for people practising in that field.
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With respect to the legal profession, it is already there in every province and in every territory. There is a replication of law societies in each provincial jurisdiction. There is no such regulation in immigration. I haven't thought this through yet in total, but it could be that there are overlapping jurisdictions. The law society here, for example, would have no jurisdiction under the current act. We could only regulate lawyers. We can't regulate non-lawyers.
Ms Meredith: I appreciate that, but my understanding of section 95 under the Constitution Act is that immigration is a shared responsibility.
I would suggest to you that perhaps the most efficient way of licensing and regulating it would be through a society of immigration consultants in the same manner as there is a law society and that the society be responsible in the same way the law society is in regulating and licensing the people who practise in that field. They could also set up the same kind of protection to the client in an insurance program or restitution program or whatever it was called. I would suggest to you that may be a more practical way of dealing with the licensing aspect.
I want to go on and pick up on a point you made about the immigrant consultants charging $1,500 for filling out the basic immigration form. Do you see a problem where these forms perhaps are written in such a way that a person cannot do that without assistance or assistance from, say, a community organization that is there on a voluntary basis to help new immigrants and refugees?
Mr. Trevino: Many of these people just don't know where to turn. They don't know what our system is. They don't know whether or not they should see a lawyer. They don't know legal aid is available to them. On the basis of what little information we have about the way immigration consultants or some of them practise, they become victims simply from lack of knowledge.
That goes back, I suppose, to your earlier point. It may be appropriate to regulate provincially, but it would require each and every province and territory to amend their legal profession's act or their versions of it.
Ms Meredith: I would suggest to you, sir, that perhaps some provinces have real problems in this area and other provinces that don't have large numbers of immigrants coming into their provinces don't see this as so much of a problem. In B.C. is the problem you're dealing with largely the business and investor program? Is this where we see a lot of abuse from immigrant consultants?
Mr. Trevino: No. Generally speaking, that group is sophisticated enough to learn about the legal system fairly quickly and relatively easily. That is not a major problem in our view.
The major problem is that those who do not fit in that category come in under different parts of the program. They are not wealthy, wouldn't qualify under the business investor category, and are not sophisticated in terms of knowing how to find out about the system and how it works. They're the most vulnerable people.
Ms Meredith: They're the ones who are ending up.... I'm a little confused as to when you get complaints about people who are outside your jurisdiction. Do you do anything with those complaints? Do you pass them on to law enforcement people who may be in a position of following up? How do you handle them?
Mr. Trevino: If there's enough evidence to support that, yes, we would at least report it or have the person get in touch with law enforcement people. But we have no jurisdiction over non-lawyers. There's very little we can do.
The Chair: Thank you, Ms Meredith. We'll be back.
Mr. Assadourian: I have one quick question. I notice you call your organization the multicultural committee of the Law Society of British Columbia. Am I right?
Mr. Trevino: Yes.
Mr. Assadourian: Why would you call it multicultural committee? This is lawyer's stuff; it's immigration.
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Mr. Trevino: The Law Society, about three and a half years ago, made it part of its program and its policy to set up a permanent multiculturalism committee. The committee is quite representative in terms of both gender and ethnicity of the population of the province. That makes it a fairly large committee, with something over 25 members currently.
The committee, in an outreach program, publicized the fact that it had been put into existence by the Law Society and asked other lawyers who were interested, but not on the committee, to identify themselves. With respect to that feedback, the committee struck four subcommittees dealing with, for example, matters of public legal education, access to legal services, systemic discrimination in the justice system, and so on. When you put both the committee and the subcommittee members together, we have over 40 people.
As I mentioned in my introductory remarks, the way our submission to you got generated was first of all in the subcommittee dealing with systemic discrimination within the justice system, which identified immigration consultants as a concern in the way in which they were serving or not serving immigrants. That subcommittee's work came to the main committee, the multiculturalism committee, and received its approval, and then the brief you received obtained the approval of the benchers or the board of directors of the Law Society.
Did that answer the question?
Mr. Assadourian: Thank you, yes.
I went through your brief you presented to us and on page 5, under ``The Law Society's Position'', it says:
- The Law Society holds the strong view that vulnerable people who make immigration
applications can only be protected if those who give them advice and representation in return
for a fee are subject to the kind of well-developed regulatory scheme that the Law Society has in
place.
Mr. Trevino: Very little, sir, because we have no jurisdiction over non-lawyers. We could regulate lawyers. A lawyer practising in the area of immigration law who is not competent and comes to the Law Society's attention - we can regulate that person. We can either require that person not to practise in an area in which he or she is incompetent, or we could require that person to stop practising in that area until they become competent, with approved courses of study and examinations. We have no power over non-lawyers.
Mr. Assadourian: But have you approached the provincial government about this? What do they say?
Mr. Trevino: No, we have not. We have, rightly or wrongly, considered the primary responsibility in immigration to be that of the federal government.
Mr. Assadourian: Thank you.
The Chair: Mrs. Ur.
Mrs. Ur: I have just a quick question, Madam Chair.
In your brief you say:
- The Law Society also supports the position of the CBA as set forth in its June 1995 written
submission and, in particular, recommends that the practice of immigration law be limited to
licensed lawyers and unpaid non-lawyers.
- Who are you referring to when you refer to unpaid non-lawyers, and what would their job
description be?
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Mrs. Ur: I have one last question. It states that there is a current lack of regulation often, which reflects poorly on the Government of Canada because there isn't adequate information. Do you think there's strong room for support for providing more documentation to immigrants before they emigrate to Canada as to the services that are available, whether they want to use lawyer services and expand on what their job description is, versus consultants and their job description, so that they themselves can make an educated decision as to which one would serve their purposes best?
Mr. Trevino: Indeed. Anything you can do to put more information in an understandable form into the hands of people in the area, anything that allows an educated judgment to be made with respect to their personal options is all for the better.
For example, one of the first things the multicultural committee's subcommittee on public legal education did was to recommend the translation of a Law Society brochure, ironically on how to complain about your lawyer, into about six or eight languages. Instead of just English and French, it went into Punjabi, Mandarin, Cantonese, and so on.
The point I'm making is that our studies in the multicultural committee have shown that different people receive information in different ways. So it would be essential, or at least we have considered it essential, to look at the form of the documentation. The translation of it is not simply a translation; what you want to do is inform people. You have to examine how that particular group best receives information and understands it.
Mrs. Ur: Thank you.
The Chair: We still have a little bit of time. Ms Cohen.
Ms Cohen (Windsor - St. Clair): Thank you. It's nice to have you here all the way from British Columbia, where my daughter lives.
In any event, I used to practise a little bit of immigration law and I'm amazed at the position of the Bloc and Reform questioners, that there should be some provincial jurisdiction here. It seems to me that there is, certainly in the province of Ontario and I suspect in British Columbia, Alberta, and other provinces, absolutely no point at which a consultant or a lawyer, acting on behalf of an immigration client, would interface with the provincial government. There's no board, there's no tribunal, and there's no court that has jurisdiction to deal with the issue of refugee status, of qualifications of an immigrant to the country, and there's no department for them to interface with. Am I not correct?
Mr. Trevino: Yes, you certainly are.
Ms Cohen: So we would have the rather unusual situation of the province paying for a regulatory system that they have no interest in maintaining.
Mr. Trevino: That would be the result, and in fact, that is why I am not optimistic that the province would amend the Legal Profession Act to give the Law Society jurisdiction over consultants. That is a pretty far jump, and you're quite correct in saying there is no place to go in British Columbia to deal with immigration matters, except to the federal government.
Ms Cohen: That's right. Where the courts have ancillary powers, for instance, to recognize someone to appear in front of them and that sort of thing, you would still be talking about a federal court, not a court of any form of provincial jurisdiction, right?
Mr. Trevino: Correct.
The Chair: Thank you. Do you want to come back?
Ms Cohen: That's fine.
The Chair: Ms Meredith, I cut off two minutes of your time before I realized it. Would you like to add anything? Then I'll go to Mr. Nunez.
Ms Meredith: In response to Ms Cohen's comments, I think perhaps the agency dealing with immigration at this time is the federal government, but I think there's a more local response to protecting the people who have chosen to live in B.C., that the government administration at the municipal and provincial levels are perhaps more concerned about that individual's well-being than is the federal bureaucracy.
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So I don't buy the argument that simply because it's federal legislation and federally administered at this time, it removes the concern of the provincial government from looking after the interests of the individuals who have chosen to live in British Columbia. I suggest that it would be worth talking to the provincial government to see whether they're at all interested in helping establish an association or a society that would try to regulate this type of service to the people of British Columbia.
Mr. Trevino: I think it is correct that many of our cities and municipalities, perhaps on a regional basis more than province-wide, have a great deal of concern about how these matters are dealt with.
I repeat that I'm not very optimistic about getting any action on the issue at the provincial level. It is quite a widely held view that immigration is a federal matter here - again, as I say, rightly or wrongly. But I didn't want to give the appearance that there was a lack of local concern.
The Chair: Mr. Trevino, you said earlier that Ms Nann wanted to add. Does she want to intervene at this point or would you like us to come back at the end?
Mr. Trevino: Please, would you hear Ms Nann.
The Chair: Yes. Ms Nann.
Ms Beverly Nann (Executive Director, Affiliation of Multicultural Societies and Service Agencies of British Columbia): Thank you. I am the executive director of the Affiliation of Multicultural Societies and Service Agencies of B.C. We represent 78 multicultural and immigrant-serving organizations throughout the province and those with related interests. We have a special interest in this whole area of immigration consultants as a lot of our direct service providers of immigrant services are involved with clients who are affected by the services provided by these people.
We see the problem of immigration consultants as twofold. First, there are concerns arising from dishonest and exploitative practices by some of these consultants. Second, the ongoing withdrawal of face-to-face service delivery by the federal government to immigrants is creating what we call an ideal situation for such exploitative practices to occur.
The most common complaint we receive with respect to immigration consultants concerns the empty promises they make, saying such things as, for a fee I can expedite your case, I can get someone in, I have influence with Immigration. They also offer clients the option to owe them money so that the immigrants or refugees are beholden to the consultant and feel they can't seek advice elsewhere, even when difficulties arise.
In one instance a client realized that his personal information form was poorly completed by his consultant and he decided to go to a lawyer for assistance. That immigration consultant refused to release the client's documents and identification papers to the lawyer or the client. Finally the refugee board had to subpoena the consultant's files in order for the client to receive his documents.
Immigration consultants are in a position to manipulate immigrants and refugees because they understand the language and the culture of the clients they're serving. They can prey on both their ignorance of our legal system and the insecurity of their status in Canada.
Newcomers often perceive that the expensive services are the better services, and they believe government systems are corrupt and can be manipulated by the right person. Without proper information, immigrants and refugees will always be vulnerable to exploitation.
The potential for exploitation also exists with unscrupulous interpreters who overstep their roles by giving advice such as, you won't get through if you say that, or you need to have a child to stay in Canada. They recommend lawyers, usually the ones they have contracts with; misrepresent themselves as accredited interpreters when they're not; and assist clients in filling out their documents, some of which have resulted in rejected claims due to errors.
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We're also aware of incompetent lawyers, but nothing that could be seen as exploitative. However, some practices by lawyers should be discouraged, such as having someone else fill out the client's personal information forms or using interpreters other than accredited interpreters.
So I think this brings me to one of the root problems, the transferring of responsibility for documentation preparation from government employees to clients. This trend toward automated services, service by mail, telephone information tapes, etc., is causing undue hardship on immigrants and refugees and putting them at risk.
On February 25 we had a meeting with the citizenship and immigration office here. They released statistics on the newly introduced mail-in system and indicated that they had approved of 460 deferred removal order class applications. They took this as a sign that the clients were able to successfully handle the forms and that their mail-in system was indeed working. However, one of our agencies present at that meeting had actually assisted 135 of those applications. Of course, this is not to even have a count on other agencies that were probably assisting clients and immigration consultants who were probably also handling a portion of that service. We just really wonder how many of those 460 deferred removal order class forms were done independently by the immigrants or refugees.
The reality is that a non-English-speaking or non-French-speaking person who is unfamiliar with Canadian laws and customs can't begin to complete those forms by themselves. They need assistance. The question then becomes who can or should assist them. At this point our settlement agencies have had to take on this task on behalf of their clients. While citizenship and immigration have publicly admitted that non-English-speaking or non-French-speaking immigrants and refugees will need assistance, this same ministry has given specific direction that none of this work should be done by its contracting agencies. In other words, that includes our settlement agencies on federal time, using federal funds. Other than an information session, no training has been provided by the ministry to assist government workers in this activity.
At this time only the personal information forms are covered by legal aid. Not every claimant is aware of this coverage. Post-determination review, humanitarian and compassionate grounds, and deferred removal order class services are not covered by legal aid. The completion of these forms, then, is at best left to well-meaning but untrained settlement workers to do, or at worst to unscrupulous immigration consultants.
Ignored in this whole devolution of federal services is the impact an incorrectly filled-out immigration form can have. A mistake affects the credibility of the refugee or immigrant claim. We understand that regulating the field of immigration consultants would be a provincial responsibility. However, there are several things the federal government can do to reduce the problem.
The most immediate response would be to provide information to immigrants and refugees in their own languages, which would prevent the exploitation at least of those who are literate. A simple one-page flyer accompanying the form to be completed could explain the importance of the form and that free legal assistance is available. It could include a fair price range for those wishing to purchase services, a warning regarding unscrupulous counsel and information on immigrant and refugee rights.
The federal government should also rethink how it's evolving its services. In reality what's happened is that government has dumped this function onto the public and the community, and we've been scrambling to respond; some in the community with good intent, others with exploitation in mind. The federal government has the responsibility to monitor the situation and train and support those who can actually equitably provide this service.
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What emerges from this discussion on immigration consultants also emerges from discussions on settlement renewal. There must be a national standard of service delivery that is enforced by the federal government to ensure that Canada's immigration policy has integrity and meaning. This is not the realm of provinces or professional associations. However, we are a member of the multicultural advisory committee of the Law Society, and we do support the Law Society's submission and recommendations as one way of looking at regulating the paid immigration consultants.
Thank you.
The Chair: Thank you, Ms Nann. If you do have a written brief, you could submit it to the committee if you'd like, because I see you're reading notes.
Ms Nann: We did submit a letter to Gar Knutson.
The Chair: Oh, to the subcommittee. Thank you very much. It was brought to my attention. We'll look that up.
Mr. Nunez, cinq minutes.
Mr. Nunez: Thank you, Sandra. It was very interesting.
You said the regulation of professions is under provincial jurisdiction.
Quebec, as you know, is the only province with an immigration department, and the government issued a specific regulation on immigration consultants. It's the only province that has acted on this matter, but I think the British Columbia government and other provincial governments will act in this matter because they are playing an important role.
My question is about the second paragraph of page 8 of your presentation, where you state:
- During the course of the last 5 years, the Law Society has received complaints...about 27
immigration consultants, and has opened up a total of 31 files regarding immigration
consultants.
Mr. Trevino: I'll have to try to answer that, Mr. Nunez.
There have been virtually no results. As I said before, there is no ability on the part of the Law Society to regulate non-lawyers. If there is evidence of actual fraud, that gets reported. Otherwise we are virtually powerless, subject to anything we might convince the provincial government to do.
Mr. Nunez: I have another question about immigration consultants acting outside Canada. I know you don't have jurisdiction, that it's another country's jurisdiction, but how do you see this problem? For example, how do you see immigration consultants, or even lawyers, going to Hong Kong to counsel people there? There have been a few abuses. What is your recommendation in this field?
Mr. Trevino: The Law Society can and will regulate lawyers giving advice outside the country. It has that jurisdiction as long as a person is acting in the capacity of a lawyer. Again, we have no jurisdiction with respect to how non-lawyer immigration consultants advertise themselves or what advice they give.
Mr. Nunez: Were you aware of the problem happening in Hong Kong and in other countries?
Mr. Trevino: The problems I think generically revolve around improper advice as to the potential for successful immigration or for seeking and obtaining refugee status. What we hear is that people are not aware of some of the problems and they are not well served.
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Mr. Nunez: Thank you.
The Chair: Ms Meredith, you have five minutes.
Ms Meredith: Following up on what Mr. Nunez has brought up, are you suggesting that most of the complaints are on refugee claims?
Mr. Trevino: No, it covers the whole spectrum.
Ms Meredith: Oh, okay. From your answer I got the impression that most of the people who ended up in difficulty were using non-lawyers and were refugee claimants, but you're suggesting that it's all a different aspect of the immigration field.
Mr. Trevino: Exactly.
The Chair: Mr. Trevino, did you want to add something?
Mr. Trevino: No, I was asking Ms Nann if she had anything to add to that. She apparently does not, but Mr. Ziskrout does.
Mr. Jerome Ziskrout (Deputy Secretary, Law Society of British Columbia): There are a significant number of problems with immigration consultants acting for people other than refugees. A number of those have to do with conflicts of interest.
One shocking example that came to our attention is referred to on page 11 of our brief. Example 4 of harm to the public indicates that a consultant urged a client to invest $695,000 in a recycling business as a means of ensuring entry into Canada. No lawyer would ever have been able to make that offer; it would be considered a clear breach of the ethical standards of lawyers to get involved in such a conflict.
We have heard about many situations like this. Immigration consultants are teamed up or hooked up with persons running business interests, and they put those friends of theirs together with their clients for a fee to the immigration consultant. This is a clear conflict of interest insofar as the consultant is concerned in terms of what one would hope would be an absolute duty to act solely and entirely in the interests of the client, without reference to a side fee to the consultant, and by reason of patching the client through to a business opportunity that, unfortunately and as time has told us on many occasions, is a very poor investment opportunity for the client.
Ms Meredith: So would I be right in assuming that most of the breaches by these immigration consultants happen before they reach a judicial or quasi-judicial board such as the IRB?
Mr. Ziskrout: We don't have sufficient empirical data to agree or disagree with that proposition. We simply know there are many problems, both before it reaches a tribunal stage and at and during hearings, but we can't really say because we aren't equipped to gather the data.
We can't really tell from the material that comes to us because none of it should really be coming to us in terms of complaints. We aren't set up to deal with complaints against immigration consultants. They come to us primarily because in most cases - although I guess it is perhaps their own fault on occasion - the clients have been led to believe they are dealing with a lawyer. So that's how they get to the Law Society in the first place. We can't be considered to be a reliable source of data in respect to where the problem lies. We do know there are these problems, but we have no way of knowing where the bulk of the problems lie.
Ms Meredith: I guess my confusion is the same as that of your clients, the ones who are complaining. I understand the Law Society has expanded and brought the non-lawyer community into this multicultural advisory committee, if you will. Maybe they're going to you because they see that your organization is branching out beyond the Law Society as such. I guess it was in that context that I was asking the question and maybe Ms Nann is the one who can answer whether or not most of the problems happen before they get into the judicial system itself.
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Ms Nann: I can't answer that directly myself because I'm not providing the direct service; our agencies are. But I think there's a general feeling that there are some consultants out there who are exploiting our clients at every step of the way.
The Chair: Since there are no further questions at the moment, we will move to our next witness. Please go ahead and identify yourself.
Mr. Mason Loh (Chair, United Chinese Community Enrichment Services Society): I am a practising lawyer and also the chairman of SUCCESS, which is a social service organization in Vancouver serving mainly about 150,000 immigrants and Chinese Canadian immigrants who come to Vancouver. I have some experience in this particular area because I went to practise law in Hong Kong in 1988 until 1990 and came back to Vancouver in 1990 and I am in general practice in Vancouver now. I deal from time to time mainly with new business immigrants who come to Canada.
To answer the question that's on the table, most of the problems with immigration consultants are at the advice level and not at the judicial level. It's when immigrants are considering coming to Canada and what procedure they have to go through...they get in contact with these immigration consultants because of advertisements or whatever. It's at this point that they interface with the immigration consultant industry. In fact, when it gets to the judicial level, if there is any appeal or any immigration inquiry, I think immigration consultants generally back off because they know they are not capable and they will be under scrutiny for whatever work they do in that area. It's where they give advice and handle immigration applications that it's basically the Wild West. They do whatever they can and they know that they're not being watched.
Immigration offices overseas or in Canada really don't know a lot of times who is doing these applications unless the immigration consultants directly contact immigration department officials and say they're the one who's handling this case. When the applicants send in their applications there is a form in the package that asks the applicant to identify if somebody else is filling out those forms for them. If the applicants fill out those forms and identify the consultant, then the immigration department knows; but if they don't, if no one fills out that form, the immigration department will look at that application package and have no idea who did the form or if the applicant did it himself.
The Chair: I'd like to ask a question myself, if I may be permitted.
In your brief, Mr. Trevino and the other members of the Law Society of British Columbia, on page 22 and 23 you make three recommendations as far as I understand. One is to regulate and license; two is to restrict the practice of immigration law to lawyers by amending the Immigration Act to say only lawyers can be counsel; and the third is that the consultant should work only when supervised by lawyers. I hope I'm summing up your three recommendations properly. Which option or combination of options do you prefer?
Mr. Trevino: All of them, Madam Chair. It really is a part of the package. There has to be a structural integrity to it. What we're really looking for first of all is a certification - someone to say, yes, this person should be licensed as an immigration consultant, having in mind a degree of confidence and character and reputation. Secondly, once that person begins to practise in that way...regulation of a conduct by a code of ethics, a handbook, or however, by somebody who is accountable. Again, we're talking only of those who do it for a fee.
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The Chair: I'd like at this point to thank you very much, Mr. Trevino and the other members of the Law Society, including Mrs. Nann. I thank you for being with us this morning and hope to see you back at a future date.
We'll take a two-minute break so we can switch to our next witness, Mr. Loh, whom we've all just met. At this point I will switch the chair also, because I have to go to another meeting. Stan will chair the next part of this.
Thank you, members, for today and we'll see you next Thursday.
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The Vice-Chairman (Mr. Dromisky): Mr. Loh, good afternoon, or good morning in Vancouver, I guess.
I'm Stan Dromisky, the vice-chairman of this committee. I've taken over for the chairperson, who had to leave to attend another session.
Thank you very much for appearing this morning, and I'm sure you're going to enlighten this committee in some of the areas of concern we might have. We have no written presentation from you or your office; however, I'm going to ask you to go right ahead with your presentation.
Mr. Loh: First, I'll introduce myself again. I'm Mason Loh, chairman of SUCCESS and also a practising lawyer with some experience in the immigration field. With me is Mrs. Ansar Cheung. She's the program director of settlement services and public education in our organization, so she deals on a daily basis with new immigrants coming into the country.
We apologize that we do not have a written submission. We were just told about this meeting yesterday, so we had to get together very quickly and put together some points to share with the committee. But we appreciate the opportunity to talk to you.
The intention is that I will start off and give general pointers about our experience and some suggestions. Ansar will then give you more actual cases that our clients have come across in their dealings with immigration consultants.
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Just to give you a quick background, SUCCESS is a social service organization in Vancouver with a 22-year history. We have the mandate of serving new Chinese Canadians in integrating and settling into Canada, overcoming language and cultural barriers and becoming contributing Canadians. We service about 150,000 clients per year through our 13 office locations in the lower mainland.
I used to work with a large law firm that set up an office in Hong Kong. I went over to Hong Kong to set up an office in 1988 and ran the office for two years until 1990 before coming back to Vancouver and practising general law in Vancouver. For those two years in Hong Kong we did general practice, but a lot of it had to do with immigration because that was when things were not settled in Hong Kong. A lot of people were applying to come to Canada, especially after the June 4, 1989, massacre in Beijing, China.
I speak from my own personal experience. Ansar Cheung will share more later from her point of view and from the point of view of the organization.
During those two years in Hong Kong, and also subsequently coming back to Vancouver and practising general law, I have dealt with a lot of Chinese Canadian immigrants who come and set up businesses in Canada. I hear from them about the dealings they have with the immigration consultants overseas in Hong Kong and Taiwan and China. One thing I should share right off the bat is that the quality of immigration consultants really varied overseas. You have some very good ones - lawyers and former immigration officers and accountants, for example - and then you have some who are very marginal in the kind of advice they give and the kind of representations they make to their clients.
There's no real control, and so personally I am very pleased to see that the Parliament has set up this committee and is looking seriously at this issue. I think some form of regulations are long overdue. Generally, immigration consultants overseas have given the market - and by that I mean prospective immigrants wanting to come to Canada - a bad name.
A lot of people have some bad experience with immigration consultants and they relate this in some way to Canada because that's the first semi-official person they deal with once they've made up their mind or they have some inkling about wanting to come to Canada. If the person they meet is unscrupulous, inexperienced or incompetent, then it in some way reflects badly on Canada and the whole immigration system of Canada. So I must commend the committee for starting to look into this issue.
I want to share two cases that I personally heard about and dealt with. One was a case where a business immigrant from Hong Kong came to Canada; in fact, he came over here as an entrepreneur. For two years he was struggling. I got involved once he arrived in Canada and he came to see me.
You probably understand that as an entrepreneur, he lands with a condition. Within two years of landing, he has to set up a business in Canada. For two years he was struggling, trying to find the right business to do. We all know it's not easy to start a business in Canada, especially for new immigrants, who have no experience in Canada and no network.
I was helping him on the business side, setting up the business. But from talking to him over the period of a few meetings, I found out that in fact he was quite eligible to apply as an independent immigrant to come to Canada. But it was an immigration consultant in Hong Kong who helped his case and for some reason never explored the possibility of an independent application. He came as a business and he of course had to put up much more money and he had to land with conditions. There were all these hurdles he had to overcome, which weren't necessary. He could have come in as an independent.
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I think there are some immigration consultants who are getting people to apply in a certain way for their own personal benefit rather than for the client's benefit. I don't know if it's more because of incompetence or profit motive, because they can charge more for handling a case for a business immigrant than an independent case.
There was another case. It was someone who came as an investor immigrant. You probably know that investor immigrants have to invest at least $250,000 in order to come into this country. The case was handled by an immigration consultant who is an accountant by profession. The immigrant did succeed in coming to Canada; his application was approved. However, the investment he made in order to come to Canada was a very bad investment. He lost his shirt, all $250,000. There was not a cent left, and there was no trace of where the money went.
I got involved in the case after the immigrants had been in Canada for three years. He was trying to get his money back, or trying to find out where the money went. If it was lost as a genuine business venture, he could understand it as a businessman. But he couldn't accept and understand it when there was no trace of where the money went.
My office is handling the case by suing this accountant, this immigration consultant, and also the promoters and principals of that immigration fund.
The point I want to make on this particular case is that since the immigration consultant was an accountant, there were basically no regulations. So on the kind of representation he had made to this particular client about the investment, there was no recourse for this particular client except to go to court and sue this immigration consultant.
When immigrants come to this country, they generally are averse to going to court. When they come to a new country, they don't want to make trouble. They think going to court is making trouble, especially if the immigration consultants are overseas. Most of the immigration consultant business, I personally think, is done overseas and not in Canada.
That will bring me to the point, how do we regulate this? I got a copy of the Law Society brief just now when Jerry gave it to me, so I haven't had a chance to look at it. But I think one problem is jurisdiction. How do we control these immigration consultants who are overseas and doing most of their business there?
I think there must be some kind of accreditation procedure and licensing requirements in Canada for immigration consultants. This is just off the top. I think something should be done that way. I'm sure there are a lot of hurdles and complications on how to do it, but if there's a will, there's a way. It has to be done for the image of Canada and to protect these people wanting to come to Canada.
Another thing, in order for such licensing or regulation to work, especially to control and to regulate immigration consultants operating outside of Canada, I think the regulation process must have the cooperation and participation of the immigration department. There must be some way.
I'm thinking of one analogy. Parliament came out with some lobbyist legislation a few years back, where anybody who lobbies politicians would have to be registered as a lobbyist. I think the purpose of that legislation is so that there is some control over the quality and the scruples of these lobbyists. So I was thinking of something along the lines of that.
In order to be someone who is recognized by the immigration department for handling immigration cases, these immigration consultants, be they lawyers, accountants, ex-immigration officers, or others, would have to be registered with the immigration department. If they are not doing their work properly, there must be some disciplinary action that the immigration department can take, for example, that they will no longer handle any cases coming from these consultants, or else immigration can come out with a list of immigration consultants that they consider not desirable and that it be publicized so that prospective immigrants would know who they're dealing with if they try to identify someone who can help with their case. They would not have to just rely on advertisements or commercials put on by these consultants.
That concludes my comments. I'll be happy to answer any questions, or Ansar can commence her presentation.
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The Vice-Chairman (Mr. Dromisky): I think we will continue with the second presentation, and whatever time we have left will be devoted to questions.
Thank you.
Ms Ansar Cheung (Program Director, Settlement Public Education, United Chinese Community Enrichment Services Society): Mr. Chairman, my name is Ansar Cheung. I'm from SUCCESS, a non-profit social service organization, and today I'm speaking from the point of view of a social service provider.
Through our daily contacts we have received some complaints about immigration consultants, but we also have received positive feedback about them.
Some of the complaints say the immigration consultants claim they have several connections with Immigration and thus can get applications processed faster. Of course, this is not really true.
In some cases it is very obvious that under a specific immigration category the applicants cannot meet the minimum requirements but the consultants just lie to them, saying they have a special leeway and that because of their special connections with Immigration they can be guaranteed immigrant status. And they are charging a very big sum of money.
What I want to say is that the work of the immigration consultant does not stop as soon as the visa is issued. I'm saying that because a lot of consulting firms do have offices across Canada - in B.C., Alberta, and also in Ontario. They provide a series or package of services to applicants by starting to give them a very general orientation about Canada when they are back in their country of origin. They also receive them at the airport, provide them with recommendations about schools for their children, help them to apply for documents, advise them on how to buy a car, and these sorts of things.
Some of the clients come to Canada before they are issued a visa, especially to look for housing. If they have not purchased a house, the consultant will often provide them with accommodation for a few weeks. In this case, they can also liaise with the real estate agent here in order to get profit from the real estate agent. They then help them to apply for the returning permit. Of course they tell them what are the best reasons to write on the application form, although some of the reasons may not really be true.
We found there are some problems with some of the immigration consultants who have different agents who act as guardians for the kids who are under eighteen, thus allowing the parents to go back to their country of origin to continue their business. This has created a lot of family problems, because the agent cannot really substitute for the parents' caring. They don't really look after them and the children are not independent enough to take care of themselves. This results in a lot of anti-social behaviour.
In some cases, the consultants do not really know the immigration regulations clearly. They lie to the applicants, telling them that they have full knowledge of it and misrepresenting them before immigration. That may be why some their cases are not successful, but they have already paid a large sum of money.
The consultants always advise the clients that they should not trust anyone except for the consultants once they are in Canada. In some cases, this has created a lot of problems, because they obviously act as interpreters. I remember one case in which an immigrant family was approached by the ministry of social services. They called an immigration consultant to act as an interpreter, but the consultant only stood on the side of the family without telling them the immigration law in Canada. He could not give the family professional advice, nor could he give them legal advice or accurate information. Consultants have misled a lot of immigrant families here.
The Vice-Chairman (Mr. Dromisky): Thank you very much.
We will continue with the questioning period. We'll turn to Mr. Nunez for the first question.
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Mr. Nunez: Thank you very much. Your experience is very interesting.
I see you have a serious problem. Could you tell us how many Chinese come every year to British Columbia - to Canada - and in what category: business, immigration, family reunification, refugees.
Ms Cheung: I think a large percentage of the immigrants, if they are from Hong Kong, are under the family category. The people from Taiwan are mainly under entrepreneur and investor categories.
Mr. Loh: Mr. Nunez, the total number of immigrants coming from Hong Kong, Taiwan, and China annually through the lower mainland, British Columbia, is 30,000 to 40,000.
Mr. Nunez: So then they settle in British Columbia.
Mr. Loh: Yes, just British Columbia.
Mr. Nunez: Concerning the immigration consultants, how many of them come from your own community? How many of them are of Chinese origin and how many are from other origins? Is it the same problem even if they come from the Chinese community?
Mr. Loh: I don't think we have the actual numbers of consultants operating, because with the issue at hand, there's no regulation and control of this industry. So basically someone can open an office tomorrow or have a telephone number and start passing out business cards and calling himself an immigration consultant. He doesn't need any qualifications. He doesn't need a licence. He doesn't even need any particular knowledge or experience. He just prints a card, and he can then call himself an immigration consultant. There are a lot of them operating overseas.
I think in Vancouver there are some, and they are advertised in the newspaper and in the ethnic media, but I think most of the business is done overseas. The offices in Vancouver are mainly contact points for relatives and friends - people overseas who want help immigrating to Canada, so they will contact these offices in Vancouver. But I think most of the immigration consultants' work is done overseas on the streets of Hong Kong, Taiwan, and China. They pass out business cards for immigration consultants, and anybody can do that. There are no records, statistics, or numbers on how many there are.
Mr. Nunez: You have a very important organization, SUCCESS, and you are able to provide good services, especially advising. How do you explain to the Chinese people coming into Canada that they have to see an immigration consultant?
Mr. Loh: The work we do is very different. The work we do in SUCCESS is to basically start with the settlement services. Once they land in Canada, they need to settle into their new lives in Canada, and that's where we come in. We service them at that point. We teach them English. We teach them citizenship law, citizenship responsibilities, and employment training. We do all that work after they have landed.
The bulk of the immigration consultants' business involves helping them to come into the country, and the bulk of that work, I believe, is done overseas and not in Canada.
SUCCESS does not have an office or operation overseas. We have 13 office locations in Vancouver, in the lower mainland in B.C., and not anywhere else.
The kinds of complaints we were describing to you, as relayed to us by our clients, are made after they have landed in Canada and they have developed a relationship with us. They come to trust us and then they tell us about these experiences, so we feel an obligation towards them to bring it to you attention. But other than that, we wouldn't have known.
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Mr. Nunez: You mentioned in your presentation that you have a lot of problems with immigration consultants. Can you tell us whether you have had similar problems with some lawyers? I know you are a lawyer yourself. Have you seen incompetence, for example, or have they committed fraud, etc.?
Mr. Loh: I can't say I have any personal knowledge of any particular lawyer who was incompetent or unscrupulous. There are different ways of doing business, as Jerry Ziskrout and Ben Trevino, who were here a little earlier, were saying from the Law Society's point of view. I think lawyers generally, even though they may be operating overseas and have an office in Hong Kong or Taiwan, should still keep up their licence in British Columbia or Canada so that they are still under the jurisdiction and regulation of the Law Society in Canada. Maybe for that reason lawyers - just from my personal experience, I don't know how accurate this is - still have some control over them so that they are not really out there doing anything they want to do or saying anything they want to say.
In fact, I think the problems I've seen are maybe some of the things Ben and Jerry mentioned a little earlier; there are - actually, I've heard this more than once - clients who have said that they have received business cards or they've gone to immigration consultants' offices and immigration consultants have in some way misrepresented or misled them to believe that they were qualified lawyers. When I press these clients and ask them whether they were given a business card that says lawyer, LL B or barrister or solicitor, they then say, no, the card doesn't say that. But when they were talking to these consultants, the consultants gave them the impression that they were lawyers.
In think that in the Far East, in Hong Kong and Taiwan, and to some degree in China now, lawyers are held in high regard as a profession, so there are lots of immigration consultants who would try to give an impression that they may be practising lawyers when in fact they're not.
The reverse side of that coin, to answer your question, is that I don't have any personal knowledge of any particular case where a lawyer is unscrupulous or incompetent. I'm sure there may be, but it's just that personally I have not come across that.
Ms Meredith: I want to start off by saying I visited one of your centres in Vancouver and was very impressed with the services that SUCCESS provides to the Chinese community. I just wanted you to know that.
I'm a little concerned with what I hear, because what I'm hearing is that the main problem seems to be with consultants who are outside of Canada. It really is a question of how we in Canada control the administration of immigration outside of our country. Do you feel that what Canada should do, and I think you even mentioned it, is establish those who are acceptable to the Canadian immigration department to provide those kinds of services, and provide a list? I would assume this is how they handle the medical side, the doctors who are given accreditation, if you will, by the Canadian immigration department to provide those services outside of the country.
Is that what you think we should be doing?
Mr. Loh: Yes, I think that's a very good point about the medical doctors who are designated by the immigration department to do the medical check-up for prospective immigrants. There must be some way the immigration department can identify these doctors and qualify them to do that kind of work as people who are trustworthy from the Canadian government's point of view.
That's along the lines of what I'm thinking about, because I share your concern about how we regulate these people who are outside of Canada. Some of them are not even Canadians; they are foreigners and do not qualify in any way. They're not licensed in any way. I don't know how we control them. The only thing I can think of is if Immigration had some way of doing it, rather than having the Canadian government or some licensing body in Canada doing it.
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I think there is a range of things the immigration department could do. I think the simplest is what, madam, you have just mentioned - to have some kind of approved or accredited list of people who they recognize and they would deal with, and to somehow publicize that for the public's interest, and also for Canadian government's image and the immigration department's image. I think that's the least we can do.
As for how to ensure that the list is complete and well respected, that's something that has to be worked out. But beyond that, I think there's more that can be done, depending on how strong is the will of the government and also the immigration department to do it. We can go to the full range of licensing, accreditation, and education, beyond just having this particular list of people they recognize as scrupulous and professional people.
Ms Meredith: But how does the Canadian government license somebody who may not be a Canadian who lives overseas in Hong Kong or Taiwan or in China? How can the Canadian government do that other than through actual employment? I don't know what you've heard, but I've heard where some of the people, the nationals who have been hired by Immigration, also caused some difficulty in accessibility to the system. I don't know if that is an answer, to have the Canadian government actually hire people whose job it is to help individuals fill out the forms to apply for immigration. Is that a possibility?
Mr. Loh: Personally, I don't think so. If you have the government hire the people who would do it, they would just become another layer of immigration officers at the immigration department. So the reason immigrants hire immigration consultants is because these consultants are not part of the immigration department, and they feel that these consultants are working for their interests, that they will present their case in the best light. If these people are hired by the immigration department and the Canadian government, then the prospective immigrants would just feel they are another layer of bureaucrats. They would still try to find somebody else to deal with this layer of people. So I don't think that works.
Personally, I think the immigration department must have some power of sanction in choosing who they can deal with. That would be further on; I think the lowest level of involvement the immigration department can get involved in is to somehow compile this list of some kind. How we do it I don't know. Who gets on the list and who doesn't may be quite political. In terms of how you qualify these people, I guess you have to judge by past experience, or whatever, and do this thing through consultation with professional bodies and all that.
I think the least we can do is to have a list of some kind, and this list can be publicized. We could have two lists, a positive list and a negative list. I don't know which is the better way to go. I haven't really thought it through. But the positive list would be these people who the immigration department and the Canadian government recognize as scrupulous, professional consultants who they deal with. Another possible alternative is a list of people the immigration department doesn't like to deal with because of past experience. This would be publicized so people would not be duped after some other people have already lost money or lost time in their application. The problem with just doing the negative list is that you don't cover all the unscrupulous and incompetent people.
Ms Meredith: I appreciate what you're saying. I foresee a lot of difficulties in how you make up that list. It does become political; it becomes a reward system, if you will. How do you still maintain control over those people other than that they're on the list or they're off the list?
I want to ask a question about another point you brought up. It was about the guarantee or protection of investment dollars that come to the country and how you can prevent that from happening. I just want to be on record as saying it's very difficult for anybody to guarantee anybody's investment. There's a responsibility for that person who's making the investment to ask for documentation and to look into the business background or the reputation, if you will, of the people they're putting the trust of their money into.
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My concern is that we can't guarantee that to Canadian investors, so I don't know how we could possibly guarantee it to investors from overseas.
I want to go on record as saying that the only recourse for anybody, whether they are Canadian- or foreign-born, is to go through the court system and to get resolution through there through civil court action, and I don't know how else we could control that kind of thing. If you want to respond to that, please do.
Mr. Loh: Yes, thank you. I don't know if your committee is the one that is looking into this particular issue of restructuring the immigrant investor funds concept, but I believe your committee came out with a preliminary proposal just last month that is being discussed and people are being consulted on. So I fully agree with the comment you have made.
But in the case I was talking about a little earlier, the concern was not so much a business loss, where money is put into a fund and it is lost due to business conditions - when you invest in something, you either make money or you lose money, and that is understandable - but a case where the immigration consultant was the one who got the investor to put the money into a particular fund and there was a relationship between the immigrating consultant and the principal fund promoter.
The money wasn't lost due to business losses. It was gone - disappeared from the fund. The immigration consultant, we believe, knows or has something to do with where the money went, and that is why we were going after the immigration consultant. The promoter was gone, absconded, and there were no assets for us to go after. The immigration consultant, being the one who conned the investor into that particular fund, is the one who has to pay for it, so we are going after the immigration consultant. I don't believe the investor would have invested in this particular fund if it were not for the immigration consultant.
Ms Cheung: May I add one point?
The Vice-Chairman (Mr. Dromisky): Yes, go right ahead.
Ms Cheung: I spoke to a Canadian consul two weeks ago. He said that there is actually a list of immigration consultants. I think that was developed in Ontario. He said that if those consultants are registered under one association...I cannot remember the name of that association. Then he said that he really highly recommended those consultants.
Ms Meredith: That would only help if a new immigrant asked for a referral and they were able to refer that person to them.
That's the problem with a list. It is a question that the immigration department overseas would have to either accept or not accept an application through this consultant. I don't know that they are in a position of recommending to an individual, and I think that is where you get into a difficulty.
Ms Cheung: Yes, that is right, but then he said that for those consultants - I think there is an association, but I forgot the name of it - if they are registered under the association properly, there is some regulatory party directly.
Ms Meredith: That is something for us to look into. Thank you.
Mr. Loh: Yes, there is such an association, and we believe it is a step in the right direction. It is just that this association is very small and doesn't cover all the consultants operating.
The other problem is that the immigration department may prefer to deal with these consultants, but it doesn't mean that you have to be part of this association in order to be dealing with immigration. So there is no particular incentive for consultants to all join this association, and if the association is effective in screening out unscrupulous consultants, it would be very good and the immigration department can then rely on this association to identify the people they like dealing with.
But dealing with your concern about the immigration department recommending consultants, even though there is a list such as this, a so-called approved list of consultants, I don't think the immigration department has to do that. If they get inquiries from prospective immigrants as to who they can deal with, all the immigration department has to say is, ``This is a five-page list of two hundred consultants with their phone numbers and addresses. We haven't had any problems with them in the past, but it's up to you to choose. We're not here to recommend anybody. We're only here to provide this information.''
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Immigration offices overseas have done this with immigration funds for the longest time. I don't know whether they still do or not, but if an immigrating investor wants to find a fund to invest in, he can go to the immigration office or counsellor overseas and just ask for a list of these immigration funds. They are categorized into different provinces and types of funds, but the immigration department would not say to invest in this particular fund, they would just provide a complete list of the funds. The investor has his choice and can contact them to get information in order to make his own decision.
The Vice-Chairman (Mr. Dromisky): Thank you very much.
Due to the time factor we'll jump over to the government side now, with Ms Ur.
Mrs. Ur: In response to Ontario consultants, we were given information. The Organization of Professional Immigration Consultants did come to fruition in 1991. It is available in Ontario and has about 70 members, according to the very valuable information given to us this morning.
I have a couple of questions. In hearing the various people on this position this morning, it would appear that the most positive and productive move we could make regarding consultants would be, as you had suggested, much the same as with the registration of lobbyists. I myself certainly see it as a positive move when it comes to consultants.
But I also bring forth the fact here again that I think it's very important for us to perhaps develop more of a communications strategy with immigrants who are thinking of coming to Canada in order to give the pros and cons. They themselves can then decide on what level they're requesting assistance in and who, whether it be lawyers or whether it be consultants, can best provide it in the most efficient and affordable means.
I believe SUCCESS is a non-profit organization. I just wondered how you have your funding set up.
Those are a few questions on which I would like some direction at the present time.
Mr. Loh: SUCCESS is a non-profit organization registered with Revenue Canada for tax-exempt status. We derive about 60% of our funding from different levels of government - federal, provincial, and to a smaller extent, municipal. The community and our own fund-raising efforts and programs provide us with the other 40%.
The Vice-Chairman (Mr. Dromisky): Are there any further questions on the government side? No? Then I'll jump over to Mr. Bhaduria.
Do you have any questions?
Mr. Bhaduria (Markham - Whitchurch - Stouffville): No, thank you.
The Vice-Chairman (Mr. Dromisky): Fine.
Unless there are any other questions from any members of the committee, this concludes our hearing. Thank you very much for your appearance this morning and for presenting us with those concerns. We're hoping you will share our final report and react to it in the months ahead.
Mr. Loh: Thank you very much.
The Vice-Chairman (Mr. Dromisky): The meeting is adjourned.