Federal Court Decisions

 

 

 

 

Date: 20061213

Docket: IMM-63-05

Citation: 2006 FC 1489

Calgary, Alberta, December 13, 2006

 

PRESENT:     The Honourable Mr. Justice Hughes

 

 

BETWEEN:

THE LAW SOCIETY OF UPPER CANADA

Applicant

and

 

THE MINISTER OF CITIZENSHIP AND IMMIGRATION and

CANADIAN SOCIETY OF IMMIGRATION CONSULTANTS and

ATTORNEY GENERAL OF CANADA

Respondents

and

 

THE FEDERATION OF LAW SOCIETIES OF CANADA

Intervenor

 

 

 

 

REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               The Applicant, The Law Society of Upper Canada, seeks a declaration that the Regulations Amending the Immigration and Refugee Protection Regulations, SOR/2004-59 are ultra vires.  For the Reasons that follow, I find that the Regulations are valid and intra vires.

 

[2]               The Immigration and Refugee Protection Act (IRPA), SC 2001, c.27 provides in section 3(2)(e) that one of the objectives of that Act is to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee system, while upholding Canada’s respect for the human rights and fundamental freedoms of all human beings.  IRPA provides that the Governor in Council may make regulations including, as provided in sections 5(1) and 91:

                        ...

 

[3]               Shortly after IRPA was enacted an external Advisory Committee was established by the Minister of Citizenship and Immigration to identify concerns and prepare recommendations as to those persons who, for a fee, could represent other persons in respect of matters arising out of IRPA including appearing on behalf of such other persons before the Immigration and Refugee Board.  After consultations, receipt of submission reports and appropriate publication, none of which is contested, the Regulations now in issue were made.  They state:

                        ...

 

[4]               In brief, the Regulations at issue provide that, subject to certain “grandfathering”, only the following persons may, for a fee, represent, advise or consult with a person who is the subject of an IRPA proceeding, before the Minister, an officer or the Board:

·        A lawyer in good standing as a member of a provincial bar;

 

·        A notary who is a member of the Chambre des notaires du Quebec;

 

·        A student-at-law supervised by such a lawyer or notary; and

 

·        A member in good standing of the Canadian Society of Immigration Consultants (CSIC) incorporated under Part II of the Canada Corporations Act on October 8, 2003.

 

 

[5]               The Applicant, Law Society, supported by the Intervenor, The Federation of Law Societies of Canada, submits that these Regulations are ultra vires on one or more of the following grounds:

(1)               they are contrary to the rule of law;

(2)               they create a delegation that is not statutorily authorized;

(3)               they contain discriminatory provisions; and

(4)               they exceed the scope of the regulation-making power conferred upon the Governor in Council in the Act.

 

[6]               The Intervenor Federation raised an issue that could be said to be a subset of the issues of the Law Society, particularly issue (3).  The Federation argues that lawyers’ assistants such as paralegals have historically appeared before the Board and acted for persons of affected by IRPA.  These persons will not be able to continue to do so unless they become members of CSIC.  As members of CSIC, if such persons were to be the subject of disciplinary proceedings, they could not, in their defence, provide CSIC with their client’s files as they would be subject to solicitor-client privilege which only the client could waive.  Thus the paralegal would be unable to mount a proper defence if the client did not waive privilege.  This, the Federation argues, would be discriminatory.

 

[7]               The Respondents, the Minister of Citizenship and Immigration, the Attorney General of Canada and the Canadian Society of Immigration Consultants (CSIC) support the validity of the Regulations.  They remind the Court that Regulations are presumed to be valid, and that they are deemed to be intra vires and coherent with the enabling the statute (Coté, The Integration of Legislation in Canada (3^rd) Carswell:  Toronto, 2000 at pp 369-372).  The onus rests upon the Applicant to demonstrate otherwise.

 

 

[8]               All parties before this Court are in agreement that there have been problems experienced by potential immigrants and refugees who seek to avail themselves of the provisions of IRPA and have at times been exploited by others who are not lawyers but call themselves immigration consultants or use similar terms.  Such consultants, for a fee, have dealt with those persons administering IRPA and appeared before the Board on behalf of potential immigrants and refugee.  The representation afforded by such consultants has, on a number of occasions, been questionable to such an extent that a clear need was perceived by a large number of persons in government and in the private sector, for reform and regulation.

 

[9]               The Supreme Court of Canada in Law Society of British Columbia v. Mangat, [2001] 3 S.C.R. 113 [Mangat], considered the question as to whether the regulation of such persons was within the jurisdiction of the provinces or the federal government.  That Court decided that the federal government had the power to establish tribunals respecting aliens and naturalization and to govern who appeared before these tribunals.  At paragraph 34 of its unanimous decision the Court said:

Flowing from this jurisdiction over aliens and naturalization is the authority to establish a tribunal to determine immigration rights in individual cases as part of the administration of these rights.  Also flowing from this jurisdiction is the authority to provide for the powers of such a tribunal and its procedure including that of appearance before it.  The federal legislative jurisdiction in the field of aliens and naturalization includes the power to establish a tribunal like the IRB since that jurisdiction includes the power to make decisions as to who constitutes an alien and who ought to be naturalized.  In order to make such decisions while ensuring compliance with the requirements of natural justice and the Canadian Charter of Rights and Freedoms, the federal government must be free to determine the nature and content of, and participants in, a fair procedure for making such determinations.

De cette competence relative à la naturalization et aux aubains découle le pouvoir de constituer un tribunal administratif chargé de statuer sur les droits en matière d’immigration dans chaque cas particulier, dans le cadre de l’administration de ces droits .  La capacité de prescrire les pouvoirs d’un tel tribunal et sa procédure, dont la procédure de comparution devant lui, découle également de cette compétence.  La compétence législative fédérale dans le domaine de la naturalization et des aubains comporte le pouvoir d’établir un tribunal comme la CISR, étant donné qu’elle inclut le pouvoir de décider qui est un étranger et qui devrait être naturalisé.  Pour que de telles décisions puissent respecter les exigences de la justice naturelle et la Charte canadienne des droits et libertés, le gouvernement fédéral doit pouvoir déterminer la nature et le contenu d’une procédure équitable en la matière et qui peut y participer.

That Court also determined at paragraphs 59 through 67 that the federal government could deal with/ascertain the representation of others, for a fee, to be undertaken by persons other than lawyers.  It said at the conclusion of paragraph 58:

...Representation by non-lawyers is consistent with the purpose of such administrative bodies, which is to facilitate access to and decrease the formality of these bodies as well as to acknowledge the expertise of other classes of people.

...La représentation par des non-avocats est conforme à l’objet de ces organismes administratifs qui est de les rendre plus accessibles et d’en réduire le formalisme, ainsi que de reconnaître l’expertise d’autres catégories de personnes.

 

[10]           The Applicant and the Intervenor both agree, based on Mangat, supra, that the federal government can provide for a scheme whereby persons other than lawyers, can for a fee, represent others in dealing with IRPA and appearing before the Board.  The real issue that they raise is whether it was done correctly in the circumstances now before the Court.

 

[11]           I will turn to the several grounds as to validity raised by the Applicant and Intervenor. 

 

1.                  Are the Regulations Contrary to the Rule of Law

 

[12]           The Applicant argues that judicial independence, tracing its origins at least as far back as the Act of Settlement 1701 is a cornerstone of the adjudicative process and the judicial branch of government. Associated with that is the fundamental principle of the independence of the bar.  As stated by the Supreme Court of Canada in Canada (Attorney General) v. Law Society of British Columbia, [1982] 2 S.C.R. 307 at 335 – 336:

The independence of the Bar from the state in all its pervasive manifestations is one of the hallmarks of a free society.  Consequently, regulation of these members of the law profession by the state must, so far as by human ingenuity it can be so designed, be free from state interference, in the political sense, with the delivery of services to the individual citizens in the state, particularly in fields of public and criminal law.  The public interest in a free society knows no area more sensitive than the independence, impartiality and availability to the general public of the members of the Bar and through those members, legal advice and services generally.

 

 

[13]           CSIC members, the Applicant argues, are not independent from the state.  The Applicant points out that the evidence shows that the government has provided a start-up loan to CSIC which provides for significant monitoring of CSIC affairs by the government.  The applicant draws attention to evidence showing active participation by the government in the affairs of CSIC as a result of the provisions of the loan agreement and at the Board of Directors level.

 

[14]           The Respondents argue that the rule of law, as explained by the Supreme Court of Canada in British Columbia v. Imperial Tobacco Canada Ltd., [2005] 2 S.C.R. 473 at paragraphs 57 through 68, is not something that advocates should read into anything simply because it may support their particular view of what the law should be.  As stated at paragraph 60 of those Reasons, actions of the legislative branch of government are constrained by the rule of law, but only in the sense that they must simply comply with legislative requirements as to manner and form, that is, the procedures by which legislation is to be enacted, amended and repealed.

 

[15]           The Respondents’ position is correct.  The Supreme Court of Canada, in Mangat, supra, has already determined that the federal government may provide for representation in respect of IRPA matters, by persons who are not lawyers.  Treasury Board has created a policy under its Results-based Management Accountability Framework (RMAF) and the Regulatory Impact Analysis Statement (RIAS) to guide administrators and ensure accountability during the execution of government programs and funding initiatives.   

 

[16]           The degree of participation by the government in lending money for the institution of CSIC and the limited intervention of the government in the affairs of that organization is not inappropriate and in no way has been shown to be excessive or unwarranted.  The role of government in the affairs of CSIC is that of nurturing a new organization so that it may serve persons in need of its services in an appropriate and independent manner.

 

[17]           The rule of law cannot be used in the present circumstances to set aside the Regulations at issue.

 

2.                  Do the Regulations Create a Delegation that is not Statutorily Authorized?

 

[18]           The Regulations, in addition to providing that lawyers, notaries and students-at-law may represent persons, provides that members of CSIC, a corporation incorporated under Part II of the Canada Corporations Act, may do so.  At the time that the Regulations took effect CSIC was incorporated but did not have a complete set of rules, procedures and by-laws.

 

[19]           The Applicants argue that CSIC was barely functioning when the Regulations took effect.  It is their contention that there is no structure set out in the Regulations as to how CSIC is to be administered, how its members are selected, educated or disciplined.  CSIC, in effect, has been given an unfettered discretion over its membership.  Thus CSIC has, in effect, been given an improper delegation as to who may represent persons as to IRPA matters and appear before the Board. 

 

[20]           The Applicants submit the use of the word “govern” in section 91 does not confer broad authority to the Governor in Council and it is indicative of Parliament’s intent that the Regulations ought to prescribe rules or standards.  They acknowledge that there have been instances where the government has, by statute, given broad Regulation making powers to the Governor-in-Council but such instances are those of national emergency such as under the War Measures Act, see e.g. Validity of Regulations to Chemicals, [1943] S.C.R. 1.

 

[21]           The Respondents say that the correct approach to Regulations such as this is to determine first whether the Regulation is consistent with the powers given by the statute, and then to determine if the Regulations conform to the purposes of the statute.  They cite the Federal Court of Appeal at page 602 of their reasons in Jafari v.Canada, [1995] 2 F.C. 595 as instructive:

It goes without saying that it is not for a court to determine the wisdom of delegated legislation or to assess its validity on the basis of the court’s policy preferences.  The essential question for the court always is: does the statutory grant of authority permit this particular delegated legislation?  In looking at the statutory source of authority one must seek all possible indicia as to the purpose and scope of permitted delegated legislation.  Any limitations, express or implied, on the exercise of that power must be taken into account.  One must then look to the regulation itself to see whether it conforms and where it is argued that the regulation was not made for the purposes authorized by the statute one must try to identify one or more of those purposes for which the regulation was adopted.  It is accepted that a broad discretionary power, including a regulation-making power may not be used for a completely irrelevant purpose but it is up to the party attacking the regulation to demonstrate what that illicit purpose might be.

 

[22]           Section 91 of IRPA states that “regulations may govern who may or may not represent, advise or consult with a person who is the subject of a proceeding or application before the Minister, an officer or the Board.”  In reading section 91 in its entirety, the purpose is to govern who may and may not represent, advise or consult.  Taking this approach, it can be seen that the Regulations conform to the statute, they state who may represent persons in dealing with IRPA and before the board.  The naming of one group of such persons as being members of CSIC is no different than the naming of another group. It is readily understood that CSIC is a brand new organization with no history behind it while the law societies have too much history and venerability.  This, however, does not make such Regulations invalid.

 

[23]           This situation is closely similar to that of Re Peralta and The Queen (1985), 16 D.L.R. (4^th) 259 a decision of the Ontario Court of Appeal affirmed by the Supreme Court of Canada in brief reasons dealing with another point at [1988] 2 S.C.R. 1045.  At page 272 of the Reasons of the Ontario Court of Appeal delivered by MacKinnon, A.C.J.O. states that there is no rule or presumption for or against subdelegation; the language of the statute must be interpreted in light of what the statute is intended to achieve; the maxim delegatus non potest delegare  is not a rule of law but a rule of construction and in respect of construction consideration must be given to the language of the whole of the enactment, its purposes and objects.

 

[24]           Further, as stated by Reed J. of this Court in summarizing a number of Supreme Court of Canada decisions in The Dene Nation v. The Queen, [1984] 2 F.C. 942 at 948, a delegate legislator may subdelegate to another body administrative power if necessary to do so in order to implement the scheme or standards established.

 

[25]           While in some cases the enabling statute or regulations will have to set out schemes and standards, it is not essential to do so when, as in the case here, the statute simply requires a designation as to who may represent persons in respect of IRPA and before the Board.  It is conceded by all parties that there was nothing improper in naming lawyers, notaries and students-at-law as being such persons.  Equally, there can be nothing improper in naming members of an organization such as CSIC which was in place at the time the Regulations were enacted, as being equally so designated, even if all CSIC’s by-laws and rules were not yet in place.  Being new does not make it improper.  The Supreme Court of Canada in Mangat supra, clearly stated that the federal government could designate non-lawyers to the task.  In ensuring that CSIC was established and having a continuing interest in its early development the government was assured as to the proper designation under the Regulation.

 

3.                  Are the Regulations Discriminatory?

 

[26]           The Regulations authorize lawyers, notaries, students-at-law and members of CSIC to represent persons in IRPA matters and before the Board.  The Regulations, by specifying which persons may do such acts, has by implication stated that all others may not.  One excluded group therefore are employees of lawyers such as paralegals, who are not themselves lawyers.  Previously, such persons have appeared before the Board and acted for persons in respect of IRPA matters.

 

[27]           The evidence shows that the law societies strenuously urged, before the Regulations were enacted, that lawyers’ employees be allowed to represent others in IRPA matters before the Board.  They argued that such persons were supervised by lawyers who in turn were subject to discipline by their respective law societies.  They argued that if such employees were excluded, they would have to become members of CSIC in order to carry on their activities and thus subject to discipline by CSIC.  If it became necessary in a disciplinary proceeding before CSIC to refer to privileged solicitor-client matters this could not be done without the client’s consent or express statutory provisions to preserve the privilege.  No such statutory provisions exist.  Thus an employee could be deprived of a proper defence. This distinction of classes between paralegals and those designated under the Regulations, particularly students-at-law, the Applicant and Intervenor contend is discriminatory.

 

[28]           I do not find that the Regulations are discriminatory.  To refer again to Mangat the federal government has the power to choose persons who can represent others for IRPA purposes including representations before the Board, and such persons need not be lawyers.  Not to select a group of persons, such as lawyers’ employees, is not, in itself, discriminatory.

 

[29]           To the extent that solicitor-client privilege may cause an issue in respect of disciplinary proceedings, CSIC and the law societies are free to make suitable arrangements such as transfer of disciplinary hearings respecting lawyers’ employees to the appropriate law society.  This situation parallels that considered by the Ontario Court of Appeal in Wilder v. Ontario (Securities Commission) (2001), 197 D.L.R. (4^th) 193, where many of the same issues arose in respect of a situation where the Ontario Securities Commission may have to discipline a person entitled to practice before it who is also a lawyer governed by the Law Society.  As stated by Sharpe, J.A. for the Court in paragraph 32 of the reasons:

[32] However, I do not accept that contention of the appellants and The Law Society that the need to respect solicitor-client privilege requires a blanket preclusion, preventing the OSC from reprimanding lawyers in all cases, provided the OSC pays adequate heed to the importance of solicitor-client privilege.

 

[30]           In paragraph 34 of those reasons, Sharpe JA noted that while a situation where a person could be put in a dilemma should be avoided, if it cannot be avoided, then the non-legal body should defer to the legal body or at least time its proceedings in such a way so as to preserve substantive rights.

 

[31]           I find, therefore, that the Regulations are not discriminatory.

 

4.                  Do the Regulations Exceed the Powers Conferred by the Statute?

 

[32]           The statute says that the Regulations may govern who may or may not represent, advise or consult in respect of IRPA matters.  The Regulations define that lawyers, notaries, students-at-law and CSIC members are persons who may represent, advise or consult.

 

[33]           The Applicant argues that the creation of a self-governing profession involves valuable rights and is directed toward vulnerable interests as was stated by the Supreme Court of Canada in Pearlman v. Manitoba Law Society, [1991] 2 S.C.R. 869 at 886-887 [Pearlman].  It argues that the creation of a new professional body requires very clear authority in the statute itself.  It cannot be left to a Regulation which in turn authorizes a newly created corporation, to select members, to see that they are trained and to discipline them. 

[34]           At paragraph 39, p 886-87 in Pearlman, the Applicants note that the Court stated that there was “legislative rationale behind making a profession self-governing” and then referring to a study paper entitled The Report of the Professional Organizations Committee (1980).  The quote from that paper that when legislatures enact statutes for self-regulation, it is a matter of public policy and that the legislatures ultimately remain responsible.

 

[35]           At page 888 in Pearlman, the Applicants rely on Canada (Attorney General of Canada) v. Law Society of British Columbia, [1982] 2 S.C.R. 307, supra  at pp 335-36 where Justice Estey states that a province may use legislative action in the regulation of members of a law profession because of the public interest.  The Applicants broaden Justice Estey’s decision at p. 888 that a statute creates the necessary independence that is required to ensure the delivery of services to citizens. 

 

[36]           The Respondents, relying on Professor Peter Hogg, Constitutional Law of Canada, loose leaf (Toronto: Carswell, 1997) paras. 14-12, 14-4, and cases such as Hodge v. the Queen, (1883) 9 App Cas 117, Re Gray, [1988] 57 S.C.R. 150; and Canada (Attorney General) v. Nolan C. Hallett & Carey Ltd., [1952] 3 D.L.R. 433 (JCPC) state that parliament has broad power to delegate by way of regulation subject to the scope of the enabling legislation.  Subdelegation of this kind is for the legislature, not the Courts, to decide.

 

[37]           The line of authority relied upon by the Respondents is persuasive.  Parliament can delegate, by way of Regulation making power, provided such designation is consistent with the purposes of the statute.  The Regulations here are consistent with that purpose.  The case law does not mandate that a statute enactment for the creation a self-governing body.  Rather, the jurisprudence suggests that it is a matter for Parliament or the provincial legislatures to determine the need for a statute in creating self-regulatory body.

 

Conclusion

[38]           I find, therefore, that the Regulations are valid, they are intra vires and properly within the scope of the enabling legislation.

 

[39]           The parties have asked that I provide each of them with an opportunity to submit a proposed question or questions for certification and I will do so.

 

[40]           The parties have agreed that there will be no costs.

 

 

 

 

 

 

 

JUDGMENT

 

FOR THE REASONS GIVEN ABOVE:

1.                  The Application is dismissed;

2.                  The Regulations amending the Immigration and Refugee Protection Regulations, SOR/2004-59 are intra vires;

3.                  The parties have a period of thirty (30) days from the date of this Judgment to submit a proposed question or questions for certification; and

4.                  No order as to costs.

 

 

“Roger T. Hughes”

 

FEDERAL COURT

 

NAME OF COUNSEL AND SOLICITORS OF RECORD

 

 

 

DOCKET:                                          IMM-63-05

 

STYLE OF CAUSE:                          The Law Society of Upper Canada

                                                            v. The Minister of Citizenship and Immigration et al.

 

PLACE OF HEARING:                    Toronto, Ontario

 

DATE OF HEARING:                      December 4 and 6, 2006

 

REASONS FOR JUDGMENT

AND JUDGMENT:                          HUGHES J.

 

DATED:                                             December 13, 2006

 

 

APPEARANCES:

 

Bryan Finlay, Q.C. Marie-Andree Vermette Caroline Abela	FOR THE APPLICANT
Marianne Zoric Catherine Vasilaros Matina Karvellas	FOR THE RESPONDENT, ATTORNEY GENERAL OF CANADA AND MINISTER OF CITIZENSHIP AND IMMIGRATION
John E. Callaghan Benjamin Na	FOR THE RESPONDENT, CANADIAN SOCIETY OF IMMIGRATION CONSULTANTS
Chris G. Paliare Andrew K. Lokan	FOR THE INTERVENOR THE FEDERATION OF LAW SOCIETIES OF CANADA

 

SOLICITORS OF RECORD:

 

WEIRFOULDS LLP TORONTO,ONTARIO	FOR THE APPLICANT
JOHN H.SIMS, Q.C. TORONTO, ONTARIO	FOR THE RESPONDENT, DEPUTY ATTORNEY GENERAL OF CANADA
GOWLING LAFLEUR HENDERSON TORONTO, ONTARIO     PALIARE ROLAND ROSENBERG ROTHSTEIN LLP TORONTO, ONTARIO	FOR THE RESPONDENT, CANADIAN SOCIETY OF IMMIGRATION CONSULTANTS     FOR THE INTERVENOR, FEDERATION OF LAW SOCIETIES OF CANADA