Canadian Refugee Procedure/91-91.1 - Representation or Advice

IRPA Sections 91-91.1

Sections 91-91.1 of the Immigration and Refugee Protection Act read:

Representation or Advice

Representation or advice for consideration
91 (1) Subject to this section, no person shall knowingly, directly or indirectly, represent or advise a person for consideration — or offer to do so — in connection with the submission of an expression of interest under subsection 10.1(3) or a proceeding or application under this Act.

Section 91 restricts who can represent or advise a person for consideration, there are separate rules for those providing services that are unremunerated

Section 91(1) of the Act provides no person shall represent or advise a person for consideration - or offer to do so - except as authorised by s. 91 of the Act. For the RPD rule governing Counsel who are representatives without fee, see: Canadian Refugee Procedure/RPD Rules 3-13 - Information and Documents to be Provided#RPD Rule 5 - Declaration where counsel is not acting for consideration. If there are allegations or concerns that a representative, who is not a member of the specific regulated professions listed above, is being paid for their services before the IRB, this is governed by the IRB’s Policy for Handling Immigration and Refugee Board of Canada Complaints Regarding Unauthorized, Paid Representatives. See also: Canadian Refugee Procedure/RPD Rules 14-16 - Counsel of Record#The Board has jurisdiction to control who can appear before it as counsel.

Persons who may represent or advise
(2) A person does not contravene subsection (1) if they are
(a) a lawyer who is a member in good standing of a law society of a province or a notary who is a member in good standing of the Chambre des notaires du Québec;
(b) any other member in good standing of a law society of a province or the Chambre des notaires du Québec, including a paralegal; or
(c) a member in good standing of the College, as defined in section 2 of the College of Immigration and Citizenship Consultants Act.

Section 91(2) sets out the four groups who may represent persons before the IRB for consideration

The previous Immigration Act was interpreted to permit unregulated “other counsel” to represent persons before the IRB. An amendment to the IRPA in 2011 changed that, restricting such representation to above four categories of licensed persons: lawyers, notaries (in Quebec), immigration consultants and paralegals.

Section 91(2)(c) provides that a member of the College of Immigration and Citizenship Consultants must be "in good standing" to represent persons before the IRB for consideration

Section 91(2)(c) of the IRPA provides that a member of the College of Immigration and Citizenship Consultants must be "in good standing" to represent persons before the IRB for consideration. In accordance with College By-Law 2021-2, the term “in good standing” means that the consultant, among other things, has met the College's learning requirements and has not been suspended. By-laws of the College of Immigration and Citizenship Consultants also provide that, as of July 1, 2023, immigration consultants must obtain a Class L3 licence from the College in order to be permitted to represent persons before the Immigration and Refugee Board. The qualifications for a Class L3 licence are higher than the qualifications a Class L2 licence that is needed for general immigration work. As such, section 91 of the IRPA may be interpreted such that “in good standing” means that the College permits the immigration consultant to practice in the particular area and so that immigration consultants who lack the required L3 licence contravene section 91 of the IRPA if they represent or advise a person for consideration. See also: Canadian Refugee Procedure/RPD Rules 3-13 - Information and Documents to be Provided#RPD Rule 5 - Declaration where counsel is not acting for consideration.

Section 91(3): Students-at-law

Students-at-law
(3) A student-at-law does not contravene subsection (1) by offering or providing representation or advice to a person if the student-at-law is acting under the supervision of a person mentioned in paragraph (2)(a) who is representing or advising the person — or offering to do so — in connection with the submission of an expression of interest under subsection 10.1(3) or a proceeding or application under this Act.

Agreement or arrangement with Her Majesty
(4) An entity, including a person acting on its behalf, that offers or provides services to assist persons in connection with the submission of an expression of interest under subsection 10.1(3) or an application under this Act, including for a permanent or temporary resident visa, travel documents or a work or study permit, does not contravene subsection (1) if it is acting in accordance with an agreement or arrangement between that entity and Her Majesty in right of Canada that authorizes it to provide those services.

(5) [Repealed, 2019, c. 29, s. 296]
(5.1) [Repealed, 2019, c. 29, s. 296]
(6) [Repealed, 2019, c. 29, s. 296]
(7) [Repealed, 2019, c. 29, s. 296]

Québec Immigration Act
(7.1) For greater certainty, the Québec Immigration Act, CQLR, c. I-0.2.1, applies to, among other persons, every person who, in Quebec, represents or advises a person for consideration — or offers to do so — in connection with a proceeding or application under this Act and is a member of the College, as defined in section 2 of the College of Immigration and Citizenship Consultants Act.

(8) [Repealed, 2019, c. 29, s. 296]

Penalties
(9) Every person who contravenes subsection (1) commits an offence and is liable
(a) on conviction on indictment, to a fine of not more than $200,000 or to imprisonment for a term of not more than two years, or to both; or
(b) on summary conviction, to a fine of not more than $40,000 or to imprisonment for a term of not more than six months, or to both.

Meaning of proceeding
(10) For greater certainty, in this section, proceeding does not include a proceeding before a superior court.

IRPA s. 91(10): A proceeding under this Act does not include a proceeding before a superior court, and as such an immigration consultant may not provide representation on judicial review

Section 91(2) provides that persons may represent or advise for consideration in connection with a proceeding or application under this Act if they are a member in good standing of the College of Immigration and Citizenship Consultants or the Chambre des notaires du Quebec. However, this provision of the Act does not include a proceeding before a superior court. Therefore, this provision does not authorise an Immigration Consultant or a Quebec notary to represent a client on a judicial review of an IRB decision.

Regulations
91.1 (1) The regulations may
(a) establish a system of administrative penalties and consequences — including of administrative monetary penalties — applicable to the violations designated in regulations made under paragraph (b) and set the amounts of those administrative monetary penalties;
(b) designate as a violation the contravention — including a contravention committed outside Canada — of any specified provision of this Act or of the regulations by any person who, directly or indirectly, represents or advises a person for consideration — or offers to do so — in connection with the submission of an expression of interest under subsection 10.1(3) or a proceeding or application under this Act;
(c) prohibit acts in relation to the activity of representing or advising — or offering to do so — described in paragraph (b); and
(d) provide for the power to inspect — including the power to require documents to be provided by individuals and entities for inspection — for the purpose of verifying compliance with the provisions specified in regulations made under paragraph (b).

Right to request review
(2) Any regulation made under paragraph (1)(a) must provide that a person referred to in any of subsections 91(2) to (4) who is the subject of a notice of violation has the right to request, from a person appointed under subsection (3), a review of the notice or of the penalty imposed.

Appointment — order
(3) The Governor in Council may, by order, appoint one or more Canadian citizens or permanent residents to conduct reviews in respect of notices of violation issued, or penalties imposed, under a regulation made under paragraph (1)(a) and to perform any other function conferred on them by a regulation made under that paragraph.

Tenure
(4) A person appointed by order under subsection (3) holds office during good behaviour for a term that the Governor in Council may specify, by order, but may be removed for cause by the Governor in Council at any time.