Canadian Refugee Procedure/Counsel of Record

As Martin Jones and Sasha Baglay observe, “the representation of refugee claimants by qualified counsel is an important part of the Canadian refugee determination process. The availability and expertise of counsel bring significant benefits to both the claimants and the overall efficiency and legitimacy of the process. The representation of refugee claimants is also an expression of a fundamental constitutional and common law value: that individuals facing complicated legal proceedings with serious consequences should be allowed to be represented so as to ensure that there is a full and fair hearing.”[1] The following sections outline the contours, limits, and practicalities of this right.

Canadian Charter of Rights and FreedomsEdit

Section 7 of the Canadian Charter of Rights and Freedoms provides:

Life, liberty and security of person
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Section 10(b) of the Canadian Charter of Rights and Freedoms provides the following right to counsel:[2]

Arrest or Detention
10. Everyone has the right on arrest or detention ...
(b) to retain and instruct counsel without delay and to be informed of that right ...

Both sections 7 and 10 of the Charter are relevant to the right to counsel in refugee proceedingsEdit

The court has found that section 7 Charter rights are involved in inland refugee proceedings and that they include “the right to be represented by competent and careful counsel”.[3] For a discussion of s. 10 of the Charter, see: Canadian Refugee Procedure/Counsel of Record#The right to counsel does not apply where a person is not yet subject to proceedings before the Board and where the person is not detained.

Canadian Bill of RightsEdit

Section 2(d) of the Canadian Bill of Rights concerns the right to counsel:[4]

Construction of law
2 Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to
(d) authorize a court, tribunal, commission, board or other authority to compel a person to give evidence if he is denied counsel, protection against self crimination or other constitutional safeguards;

IRPA s. 167 - Right to counselEdit

Right to counsel
167 (1) A person who is the subject of proceedings before any Division of the Board and the Minister may, at their own expense, be represented by legal or other counsel.

History of this provisionEdit

In the 1976 Immigration Act, claimants right to retain counsel was recognized, as was a provision providing that claimants be informed of that right.[5]

In what immigration contexts do claimants have a right to counsel?Edit

The right to counsel in the IRPA applies from the time a person is subject to proceedings before the Board, not just at the hearingEdit

Section 167(1) of the Act provides that a person who is the subject of proceedings before any Division of the Board may be represented by legal or other counsel. As such, this provision of the Act ties the right to counsel to whether or not the individual is the subject of proceedings before the Board. RPD Rule 1 provides that a proceeding includes a conference, an application or a hearing: Canadian Refugee Procedure/Definitions#Commentary on the definition of "proceeding". In Canada v. Gutierrez, the Federal Court of Appeal found that the applicants had a right to counsel at an interview conducted after their claim had been made, but a few weeks before their IRB hearing was scheduled. In that situation, the claimants were considered to be the subject of proceedings before the Board, and as such, were entitled to be represented by counsel according to s. 167 of the Act.[6]

This scope for the right to counsel in Canadian law appears to track that in international law, where the right to representation is specific to that where an alien is appearing before the authority competent to decide on their expulsion per Article 13 of the International Covenant on Civil and Political Rights:

An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.[7]

The right to counsel does not apply where a person is not yet subject to proceedings before the Board and where the person is not detainedEdit

A person is generally not entitled to counsel at interviews or pre-hearing proceedings where the person has not yet become the subject of proceedings at the Board, for example before a claim is referred to the Board: Canada v. Bermudez.[8] In Canada v. Barrios, the claimant's request to be represented by counsel during his initial encounter with a CBSA officer who was interviewing him at the border was denied. In subsequent proceedings before the RPD, the claimant requested that evidence arising from this interview be excluded because it was, he argued, obtained in violation of his right to counsel. The court held that the CBSA's conduct in interviewing the claimant in the absence of counsel did not violate any right to counsel, since the person concerned had no right to counsel in the circumstances as they were not, at the time they were being interviewed, subject to any proceedings before the Board.[9]

This conclusion will be different, however, where a person is detained and not free to leave at the time that they are being questioned: Chen v. Canada.[10] This is so on the basis that in such circumstances an individual's s. 10(b) right to counsel under the Charter of Rights and Freedoms will apply. Remedies for violation of this right to counsel may be provided by the Division. For example, in Chen v. Canada Justice O'Reilly held that the IRB could not rely on statements made by a Chinese refugee claimant after being detained for two days when he was not informed of his right to consult a lawyer.[10]

What is entailed by the right to counsel?Edit

Individuals who are detained have a right to the assistance needed to obtain legal counselEdit

In Chevez v. Canada, the applicant was arrested and detained by the RCMP and questioned on several occasions by officers from the Canada Border Services Agency before an exclusion order was issued against him. According to the applicant, the officers had ignored his requests to see a lawyer and did not provide him with any alternatives. The Federal Court ruled in his favour. The court held that the officers were required to do more than inform him of his right to counsel, they were additionally required to provide him with the assistance he needed to obtain legal counsel. According to the court, it was incumbent on the officers to take positive actions, including waiting for duty counsel to become available, informing the applicant that he could insist on waiting until duty counsel was available, or providing other representation through a legal aid services.[11]

The right to counsel at the RPD and RAD is not a right to state-funded counselEdit

Section 167(1) of the IRPA provides that an individual may be represented by counsel "at their own expense". In practice, most Canadian provinces have a legal aid program which ensures that refugee claimants have access to a lawyer where they cannot afford one: Canadian Refugee Procedure/Counsel of Record#Refugee-related services are provided by some provincial legal aid programs. However, such programs can be cancelled, as Nova Scotia did with its refugee legal aid program in the 1990s. This is so as, in the words of the BC Court of Appeal, in Canada "there is no general constitutional right to legal aid, but only a right arising in specific circumstances".[12] As such, no Canadian case has established that refugee claimants have a right to state-funded counsel. Instead, the Federal Court has held that "state-funded legal aid is only constitutionally mandated in some cases [and] the right to counsel is not absolute".[13]

UNHCR has expressed the view that whether or not refugee claimants have a right to state-funded counsel in Canada should be thought of as an open question. Section 7 of the Charter of Rights and Freedoms raises the possibility that an implied right to state-funded counsel for indigent claimants may, under certain circumstances, be included within its protection guarantees, given that protection claims can involve grave issues related to a person’s security. Specifically, the notion of “fundamental justice” in s. 7 of the Canadian Charter of Rights and Freedoms involves both substantive and procedural fairness. As a consequence, a UNHCR report discussing the Canadian asylum process observes that representation is likely necessary when refugee claimants do not understand the procedures in order to ensure that the process is conducted in accordance with principles of fundamental justice.[14] The academics Sharry Aiken, et. al., also write that "there are strong arguments that s. 7 guarantees refugee claimants a right to counsel at refugee hearings".[15]

At the international level there are many statements about rights to legal counsel in asylum proceedings. On the one hand, the UK High Court states that international law does not require the provision of legal advice and assistance to asylum seekers.[16] US courts have also not accepted a constitutional or statutory argument that appointed counsel is required for noncitizens to vindicate their right to a fair hearing in immigration court.[17] Similarly, Canadian courts have held that international law does not specifically call for legal counsel as part of the implementation of a fair refugee adjudication system.[16]

On the other hand, the UN Human Rights Committee has concluded that the International Covenant on Civil and Political Rights requires that ‘“asylum-seekers be properly informed and assured of their rights, including the right to apply for asylum, with access to free legal aid”[18] and has recommended that, in accordance with Article 13 ICCPR, States should grant “free legal assistance to asylum-seekers during all asylum procedures”.[19] Similarly, the European Court of Human Rights has held that failure to provide access to legal aid for asylum seekers by Greece constituted a violation of the European Convention on Human Rights in particular circumstances.[20] As well, the Council of the European Union Procedures Directive on Minimum Standards on Procedures in Member States for Granting and Withdrawing Refugee Status provides that in the event of a negative decision, applicants in EU member states are in principle entitled to free legal assistance which Member States may, however, make contingent upon the fulfilment of further requirements such as that the appeal or review is likely to succeed.[21]

The Inter-American Commission on Human Rights states that legal aid may be necessary when it is required in order to effectively vindicate a fundamental protected right under the American Declaration of the Rights and Duties of Man or the Constitution or laws of a particular country. This flows in large measure from the principle that rights must be implemented in ways that give them proper effect.[22] It also flows from the right to equal protection of - and before - the law. They state in a report on the Canadian refugee determination system that when deciding whether legal aid is necessary for a particular individual, one may properly consider the circumstances of the particular case, its significance, legal character, and the context in the particular legal system.[23]

In what contexts will a lack of counsel render a hearing unfair?Edit

The fact that a claimant lacks counsel does not, in and of itself, mean that their hearing is unfairEdit

The Federal Court states that "individuals are free to choose to represent themselves or to be represented by counsel".[24] While about 90% of claimants attend their hearing with representation,[25] they may proceed with a claim and hearing without counsel. The Canadian jurisprudence is clear that where a claimant does not request a postponement on the basis of this lack of counsel, there is no obligation on the Board to canvass the issue of a postponement of the hearing simply because a claimant is unrepresented.[26] As Refugee Appeal Division Member Atam Uppal held in one case, the mere fact that a claimant was unrepresented and the Board denied the claim did not mean that the RPD denied procedural fairness or that the claimant was denied his right to a fair hearing.[27] Instead, the lack of representation by counsel results in a breach of procedural fairness only if, given the circumstances, it deprives the applicant of the opportunity to “participate meaningfully” in the hearing.[28]

A panel may be obliged to postpone a hearing to give a claimant an opportunity to obtain counsel upon request in certain circumstancesEdit

The court has stated that "the right to be represented by counsel is not an absolute right. It is predicated on all parties and counsel acting reasonably in all circumstances."[29] There is no obligation on the Board to tell a self-represented claimant that they may ask for an adjournment of the hearing.[30] In certain circumstances, where a party has acted diligently and reasonably and has not been able to obtain counsel for the hearing, and requests a postponement of a hearing to obtain counsel, it may be unfair for a panel to deny that request and proceed with the hearing. The following principles can therefore be drawn from the case law: although the right to counsel is not absolute in an administrative proceeding, refusing an individual the possibility to retain counsel by not allowing a postponement is reviewable if the following factors are in play: the case is complex, the consequences of the decision are serious, and/or the individual does not have the resources - whether in terms of intellect or legal knowledge - to properly represent his interests.[31] See RPD Rule 54 on changing the date and time of a proceeding for further discussion of this and a discussion of the rules that a panel should consider when exercising its discretion about whether or not to postpone a matter: Canadian Refugee Procedure/Changing the Date or Time of a Proceeding.

Where a claimant is unrepresented and is clearly not understanding what is occurring, the Board should inquire about whether they wish to have counselEdit

The general rule is that there is no stand-alone duty on a tribunal to advise a party about the availability of or right to legal aid in immigration proceedings.[32] In the words of the Refugee Appeal Division, the law is that, in general, there is "no obligation of the RPD to inform claimants of the availability of Legal Aid".[33] There is also no obligation on the Board that it insist on claimants obtaining counsel; they may proceed by representing themselves.[34] As a matter of practice, however, the notices of hearing sent by the Board advise claimants of their right to be represented by counsel.[35] Additionally, the Board publishes a Claimant's Kit, which is made available to all claimants, and includes a list of Canadian legal aid offices.[36]

That said, the court has noted that "applicants are often lost without counsel" and that counsel "can make a significant impact in the smooth progression of a proceeding".[37] The Federal Court of Appeal has stated that “[w]ithout representation, an individual may not able to participate effectively in the decision-making process, especially when facing a more powerful adversary, such as a government department”.[38] Where it is clear that an unrepresented claimant is not understanding what is occurring, a panel may be obliged to enquire with the claimant about whether they wish to have counsel. In Alvarez v. Canada, the Court found a breach of natural justice in circumstances where the tribunal proceeded despite the fact that it was clear that the applicant was not understanding the proceedings.[39] The court reached this conclusion even though the claimant had not formally requested an adjournment at the time of the hearing. For additional discussion of this principle, see: Canadian Refugee Procedure/Changing the Date or Time of a Proceeding#The Board's actions on its own motion (ex proprio motu).

The Board has a heightened duty of procedural fairness when dealing with self-represented claimantsEdit

Unrepresented claimants are comparatively rare in refugee proceedings; for example, in 2011–2012 Legal Aid Ontario provided services to 90% of all refugee claimants in Ontario.[40] The proportion of unrepresented claimants nationally remained relatively consistent at 12 to 13 percent from 2009 to 2012.[41] British Columbia has traditionally had significantly higher rates of unrepresented claimants than the rest of the country, with approximately a quarter of claimants unrepresented at their refugee hearings.[42]

The representation of refugee claimants is described as “an expression of a fundamental constitutional and common law value: that individuals facing complicated legal proceedings with serious consequences should be allowed to be represented so as to ensure that there is a full and fair hearing.”[43] That said, claimants before the RPD have a right to represent themselves[44] Caselaw establishes that the RPD owes such unrepresented litigants a heightened duty of fairness.[45] However, the precise scope of this duty will depend on all of the circumstances of the case, including the sophistication of the applicant; where the applicant is clearly sophisticated, this may support the fairness of the procedural choices that were made.[46] The RPD has a positive duty to ensure that the applicant understands both the nature of the proceedings and the salient aspects of the hearing to be conducted.[47] The Board also commits in its Guideline 8 - Concerning Procedures with Respect to Vulnerable Persons Appearing Before the Immigration and Refugee Board of Canada that it "will take extra care to ensure that self-represented vulnerable persons can participate as meaningfully as possible in their own hearings."[48]

To this end, the courts have commented positively on Members taking steps to inform self-represented claimants about RPD procedures and about the existence and application of the National Documentation Package.[49] The court has stated that an unrepresented party “is entitled to every possible and reasonable leeway to present a case in its entirety and that strict and technical rules should be relaxed for unrepresented litigants”.[50] For example, in Ghomi Neja v Canada, the Court found that a cessation hearing was procedurally unfair when the RPD failed to explain “the serious consequences to the Applicant in clear non-legalese language”.[51] Similarly, in Olifant v. Canada the Court found that a hearing was unfair when the Board did not take any positive measures to introduce the seriousness of a no credible basis finding.[52]

That said, even where an individual is self-represented, there are limits to the Board's responsibilities: the Board is not obliged to act as counsel for applicants, or to formulate arguments on their behalf, for example.[53] In Sundaram v. Canada the Federal Court stated that it was "not prepared to read into the immigration scheme an obligation on officials to give advice on practice and procedures. The situation of giving advice is markedly different from those Court decisions which have held that officials must provide prospective applicants with the necessary forms. People are entitled to government forms; they are not entitled to receive free legal advice from RPD officials."[54] Put another way, "it is not the obligation of the Board to 'teach' the Applicant the law on a particular matter involving his or her claim".[55] Claimants before the IRB have a right to represent themselves and “they can be in no better position because they did not have a lawyer”.[44]

In what contexts will counsel incompetence render a hearing unfair?Edit

Normally, claimants with counsel are more likely to succeed with their claimsEdit

Statistically, claimants with counsel are far more likely to succeed with their refugee claims than are those who are unrepresented. Several studies have shown that there is a clear correlation between having legal advice and the recognition of refugee status.[56] A study of legal advisers in Cairo, Egypt, for example, found that refugees who had legal advice had nearly double the chance of having their refugee status recognized after a UNHCR interview than other, unrepresented, asylum seekers.[57] In the US, Schoenholtz and Jacobs found that asylum seekers who had legal assistance were four to six times more likely to be recognized as refugees compared to those who did not have assistance.[58] In this study, access to a legal adviser was found to improve the chance of recognition, regardless of the refugee’s origin, at every stage of the determination process studied. Researchers studying the Canadian refugee status determination system have also concluded that having a lawyer is associated with an increased chance of success in refugee proceedings: according to a study by academic Sean Rehaag, Canadian claimants with representation from a lawyer were approximately 75 percent more likely to succeed than those who were unrepresented.[59]

Counsel's role is to exercise judgement regarding a file and not to advance any argument that their client requestsEdit

In Aghedo v. Canada, the Federal Court concluded that an argument that counsel advanced on behalf of their clients was "so weak that it should not have been made."[60] This reflects the nature of the role of counsel and how it is incumbent upon them to exercise judgement regarding what arguments they choose to advance.

Deficiencies of counsel's conduct are properly attributed to their clientEdit

Applicants who choose to be represented “are bound by the submissions made by those who represent them in the process; there is a duty on an applicant to ensure that their submissions are complete and correct”.[61] Sometimes counsel will adopt a theory of the case that does not succeed or will make tactical decisions in approaching a case where another lawyer would have decided differently. The Federal Court has held that the general rule is that you do not separate counsel's conduct from the client. Generally, the courts have held clients liable for the (mis)conduct of their counsel: “It is well recognized that a person has to accept the consequences of their choice of counsel.”[62] Counsel is acting as agent for the client and, as harsh as it may be, the client must bear the consequences of having hired poor counsel.[63] This principle is reflected in the instructions in the Basis of Claim form that every claimant receives as part of the claim process, which notes that "If you have counsel, you are responsible for making sure that your counsel meets the deadlines."[64] The Federal Court has held that judicial review should not be granted where an applicant “show[ed] little or no interest in what [was] happening to [her] own application”.[65] That said, this principle may be distinguishable in situations where counsel's conduct is incompetent to the point where it would be unfair to attribute deficiencies to the client, as discussed in the following section.

A hearing will be unfair where counsel incompetence results in a miscarriage of justiceEdit

As the court held in Aluthge v. Canada, in order for an applicant to demonstrate that their representative’s conduct (i.e. incompetence) amounted to a breach of procedural fairness which would warrant setting aside a decision on the basis of counsel incompetency, the applicant must satisfy a three-pronged test set out in case law:

1. The previous representative’s acts or omissions constituted incompetence or negligence;[66]

2. There was a miscarriage of justice in the sense that, but for the alleged conduct, there is a reasonable probability that the result of the original hearing would have been different;[67] and

3. The representative be given notice and a reasonable opportunity to respond.[68]

The Applicant bears the onus of proving all elements of the test for negligent representation, including rebutting the presumption that the representative acted competently.[69]

It is undisputed that notice that incompetence is being alleged must be given to former counsel.[70] Where such notice is provided, and the representative does not seek to dispute the allegations made, this may properly further support a finding that a representative has been negligent.[71] Furthermore, in Yanasik v. Canada Justice Favel concluded that failure to provide such notice does not allow a panel to disregard evidence before it demonstrating issues with counsel's representation.[72] For more details on the prerequisites for making such an argument before the RPD, see Rule 62(4): Canadian Refugee Procedure/Reopening a Claim or Application#Rule 62(4) - Allegations against counsel.

1) IncompetenceEdit

The applicants bear the onus of establishing that their representative’s conduct fell outside the range of reasonable professional assistance.[73] There is a strong presumption that former counsel’s conduct fell within the wide range of reasonable professional assistance.[74] As such, the test for concluding that counsel was incompetent is strict, and counsel incompetence will only be found to have caused procedural unfairness in extraordinary circumstances.[75] An applicant must demonstrate “extraordinary incompetence” tantamount to a denial of natural justice.[76] Their allegations must be sufficiently specific and clearly supported by the evidence.[77] An inadvertent or honest mistake will not suffice to demonstrate incompetence.[78] The Supreme Court of Canada has also noted that “the wisdom of hindsight has no place in this assessment.”[79]

Incompetence may be established with reference to the professional standards required of the representative at issue,[80] e.g. immigration consultants in Canada have been governed by the Code of Professional Ethics issued by the College of Immigration and Citizenship Consultants. While an immigration consultant may not have the same legal training as a lawyer, the jurisprudence suggests that they nonetheless are held to the same standard of competency.[81] Furthermore, in the words of the Federal Court of Appeal, the irreparable harm that can befall an individual upon deportation "obviously calls for the utmost vigilance from counsel representing [refugee] claimants, and for the need on their part to act with the highest standard of professionalism and thoroughness."[82] Examples of inadequate representation, counsel incompetence, negligence, and other improper conduct follow:

  • Failure to comply with undertakings: In Shirwa v. Canada, counsel had made an undertaking to file written submissions on issues that were raised during the hearing and then failed to do so. The court held that this was a serious failure on the part of counsel.[83]
  • Failure to provide important evidence to the Board: In El Kaissi v. Canada the court concluded that counsel had acted incompetently where they failed to produce a piece of corroborating evidence which the applicant had provided to counsel.[84] In Mcintyre v. Canada, the court concluded that counsel had acted incompetently when they failed to file crucial evidence as to the country conditions that demonstrated how the applicant, a gay man, would be affected by removal.[85] The jurisprudence has found incompetence “due to a failure of the representative to submit evidence that clearly should have been submitted and for which logic defies failure to submit that evidence”.[86] Failure to include relevant facts in the forms submitted may also constitute incompetence, for example in Bisht v. Canada, the Federal Court held that the counsel's failure to include all relevant information in an application form was incompetent.[87]
  • Failure to assist the claimant in the preparation of documents: In Galyas v. Canada, the court held that counsel had acted incompetently where the claimant had been "left to prepare [his BOC form] by himself, without guidance on what it should contain[,] and what the RPD would be looking for in such a narrative."[88] In El Kaissi v. Canada the court concluded that counsel had acted incompetently where they did not assist the claimant in the preparation of the Personal Information Form.[84] But see Obasuyi v. Canada in which the court concluded that counsel did not act incompetently where the claimant drafted the brief narrative herself, but counsel then reviewed it and repeatedly asked the claimant whether there were other details to add to her narrative (none being provided).[89]
  • Failure to advise a claimant to procure relevant evidence: In Sabitu v. Canada, the court noted that counsel may have an obligation to ask clients if they can procure additional relevant evidence where counsel recognizes that such evidence would be relevant to a matter that must be established in the claim.[90] The Federal Court stated in Yang v. Canada that immigration representatives may be negligent where they fail to submit crucial evidence - even in cases where the applicant did not volunteer the evidence.[91]
  • Negligently providing incorrect information to applicants: In Aluthge v. Canada, the court held that counsel had acted incompetently where they provided incorrect advice to their client about what needed to be disclosed on their immigration forms.[92]
  • Failure to advance an important argument before the Board: Counsel must have a sufficient knowledge of the fundamental issues or principles of law applicable to the particular work they have undertaken to enable them to perceive the need to ascertain the law on relevant points.[93] For example, in Satkunanathan v. Canada the applicant's former counsel appeared to be under the mistaken impression that it was not possible to advance a particular argument before the Board, when in fact it was. This was held by the court to have fallen below the standard of competence expected of counsel and to have resulted in an unfair hearing.[94] In Tesema v. Canada counsel made no submissions to the RAD on appeal whatsoever; this was held by the Federal Court to be incompetent.[95]
  • Failure to meet deadlines: The court held in Xiao v. Canada that meeting a deadline is a serious component of a representative’s duty to their client.[96] For example, subsection 6.2.1 of the Ethics Code requires immigration consultants to make best efforts to ensure that documents are delivered to IRCC before any applicable deadline.
  • Failure to be honest and candid: Representatives have duties of honesty and candour to their clients. In Yang v. Canada, the Federal Court found that the applicant's representative had deliberately attempted to mislead the applicant: "Rather than make the Applicant aware of the Procedural Fairness Letter, and thereby admit to the mistaken omission from the updated IMM5669 form, the Agent instead took deliberate steps to mislead both the Applicant and the IRCC."[97] This was found to constitute incompetence. Similarly, in Xiao v. Canada the court concluded that an immigration consultant breached their duties of honesty and candour when they misleadingly advised the Applicant that the consultant had submitted an application, but had in fact not done so.[98]
  • Failure to meet with the claimant in advance of the hearing to prepare: In El Kaissi v. Canada the court concluded that counsel had acted incompetently where they did not meet with their clients until just prior to the hearing.[84] In Olah v Canada, the the claimants had never met their counsel, who relied on unsupervised interpreters to do the work for him; this was found to be incompetent.[99]
  • Failure to keep the applicant updated about their file: For example, failing to notify the claimant of their hearing date has been held to be incompetent.[100] Similarly, failing to notify a client that their application has been refused has been held to be incompetent.[101]
  • Failure to appear for a hearing date where they are counsel of record.[102]
  • Acting while having a conflict of interest.[103] Representatives are generally enjoined by relevant professional standards from acting while in a conflict of interest. For example, under subsection 11.1.1(iii) of the ICCRC Ethics Code, withdrawal as a client’s representative was required if continued involvement will place the consultant in a conflict of interest.[104] For example, in Yanasik v. Canada, counsel indicated that he had not advanced an argument before the Refugee Appeal Division impugning his client's past counsel because of his personal friendship with that counsel; the court concluded that this was incompetent representation.[105]
  • Cumulative grounds: Counsel have also been held incompetent because of the cumulative impact of many acts and omissions which alone would not amount to incompetence.[106] Errors may result in a cascading or “snowball” effect to the Applicant’s prejudice, eventually leading to serious consequences.[107] As the court stated in Fernandez v. Canada, "I do not have to find any one act of egregious conduct to find that former counsel was incompetent. I need to establish that the actions fell outside of the realm of reasonable judgment".[108]

A decision-maker may choose not to assess this first part of the test related to level of competence in great detail where they are not persuaded that the applicant has met the second component of the test, which requires a demonstration that they have been prejudiced by the inadequate representation. In fact, the court has held that in such circumstances “it is undesirable for the Court to consider the performance component of the analysis”.[109]

2) Prejudice resulting in a miscarriage of justiceEdit

It is not sufficient for a claimant to show that their counsel performed incompetently, they must also show that but for counsel's unprofessional errors, the result of the proceeding might have been different.[110] In this respect, the test is whether there exists "a reasonable probability that the original decision would have been different."[111] This does not require that an applicant demonstrate that, on a balance of probabilities, their former counsel's incompetence would have affected the outcome of the impugned decision, only a reasonable probability (which is equivalent to a serious possibility) of such.[112] A reasonable probability may be defined as “a probability sufficient to undermine confidence in the outcome.”[113]

In making a determination about whether the counsel incompetence resulted in a miscarriage of justice such that there is a reasonable probability that the original decision would have been different, courts have looked at whether, on account of counsel’s performance, there was some procedural unfairness in the hearing,[114] the reliability of the hearing's result may have been compromised, or there was otherwise some readily apparent form of miscarriage of justice.[115] Factors to consider when applying this standard include the following:

  • Was the omission or failure on the part of counsel relevant to the outcome? An example of where this standard was not met was in Hannan v. Canada, in which a claimant alleged that their previous counsel was negligent in not providing a particular document to the Board. The Federal Court concluded that the claimant had "failed to demonstrate that substantial prejudice flowed from their former counsel’s alleged inaction" because the document in question was not relevant to the issue that was determinative for the tribunal (in that case, the availability of an Internal Flight Alternative), and as such, the court concluded that "previous counsel’s alleged omission had no impact on the outcome of the proceeding".[116] The mere fact that counsel's client succeeded in their application does not preclude a conclusion that counsel incompetence resulted in prejudice; when considering the outcome, one can consider outcomes such as the fact that the Minister chose to appeal the decision as being prejudicial to the client.[117]
  • Has the applicant particularized the additional credible information they would have submitted if given a chance? In Obasuyi v. Canada the applicants argued that counsel had been negligent by not having an interpreter present during their meetings to discuss the case. The court dismissed this argument as follows: "Despite the Applicants’ assertions about what [counsel] did not do when he represented them, they have not provided persuasive evidence about what additional information they would have submitted if given the chance."[118] Similarly, in that case the court stated that "the Applicants argue that [counsel] failed to provide sufficient documentary evidence about conditions in Nigeria, but they do not point to specific documents that he failed to bring forward."[119]
  • Was the claimant contributorily negligent? Another example of where this standard was not met was in Khan v Canada, in which the court concluded that a breach of procedural fairness should only be found “where there has been no contributory negligence or fault on the part of the [applicant]”.[120] The logic being that if the claimant had acted with care, then the issue may have been remedied at an earlier stage, say by actively monitoring the progress of their file and switching counsel in a timely way once there were signs that their counsel was conducting themselves incompetently.[121] But see Xiao v. Canada, in which the court concluded that "it defeats the purpose of hiring a representative if the expectation was that the Applicant should scrutinize the submissions of her representative."[122]

RPD Rule 14 - Becoming counsel of recordEdit

Counsel of Record

Becoming counsel of record
14 (1) Subject to subrule (2), as soon as counsel for a claimant or protected person agrees to a date for a proceeding, or as soon as a person becomes counsel after a date for a proceeding has been fixed, the counsel becomes counsel of record for the claimant or protected person.

Limitation on counsel’s retainer
(2) If a claimant or protected person has notified the Division of a limitation on their counsel’s retainer, counsel is counsel of record only to the extent of the services to be provided within the limited retainer. Counsel ceases to be counsel of record as soon as those services are completed.

Who may act as counsel in refugee proceedings before the Board?Edit

An individual can pay fees to be represented by a person who is a lawyer, paralegal, Quebec notary public, or immigration consultant. For more details, see sections 91(2)(a) to (c) of the Act: Canadian Refugee Procedure/91-91.1 - Representation or Advice.

A person may also be represented by someone who is not one of those professionals. For the form that needs to be completed in such circumstances, see Rule 5 (which applies to refugee claimants - Canadian Refugee Procedure/Information and Documents to be Provided#Rule 5 - Declaration where counsel is not acting for consideration) and Rule 13 (which applies to persons who have already been conferred refugee status - Canadian Refugee Procedure/Information and Documents to be Provided#Rule 13 - Declaration where counsel not representing or advising for consideration).

Parties may be represented by multiple counsel (co-counsel) in a proceedingEdit

Parties may be represented by more than one representative (counsel, immigration consultant, etc.) in a proceeding before the IRB. This was allowed for the Minister in Muhammad v Canada,[123] a case before the Immigration Division, and has been allowed for claimants appearing before the RPD as well.[124] Indeed, this is commonly done for the training for new representatives, as when articling students co-counsel with a more experienced lawyer.[125]

Changing counsel of record from one counsel to anotherEdit

When changing counsel, a claimant or protected person must comply with two Rules. First, they must provide the contact information for the new counsel as required by this rule (Rule 14) and by RPD Rule 4(4). See: Canadian Refugee Procedure/Information and Documents to be Provided#Rule 4 - Claimant's contact information. Secondly, they must remove the old counsel of record pursuant to Rule 16(1) below. See: Canadian Refugee Procedure/Counsel of Record#Rule 16 - Removing counsel of record

The Board has jurisdiction to control who can appear before it as counselEdit

Counsel has no substantive right to appear before the IRB.[126] In Yari v. Canada the Federal Court, in holding that the Immigration Appeal Division had the discretion to regulate its own procedure when its rules are silent, stated that “It clearly makes intuitive sense that a tribunal such as the IRB or any of its constituent divisions ought to be able to regulate its own procedure. It ought also to regulate the privilege of appearing before the tribunal to represent a claimant.”[127] In Rezaei v. Canada, the court held that the IRB has the ability (through the Chairperson’s delegate) to suspend a representative from appearing before the IRB on behalf of another person.[128]

The Board should verify that representatives appearing before the Board are authorized pursuant to the Act and regulationsEdit

The Federal Court has noted that "there is a duty incumbent upon the Board to verify that those individuals representing clients with whom it has dealings are authorized representatives pursuant to the Regulations, or that they are not receiving a fee for their services."[129] As the IRB has recognized, this duty exists to protect the public and to preserve the integrity of Canada’s immigration system.[130]

Refugee-related services are provided by some provincial legal aid programsEdit

In FY2019-20, 5% of legal aid budgets nationally were allocated to immigration and refugee matters.[131] Six provinces - British Columbia, Alberta, Manitoba, Ontario, Quebec, and Newfoundland and Labrador - offer immigration and refugee legal aid service,[132] and the overwhelming majority of the work of the Refugee Protection Division is centred in the provinces that do have legal aid programs.[133] Some other provinces, such as Nova Scotia, used to provide legal aid, but cancelled the programs in the late 1990s during budgetary cuts.[134] Similarly, the Minister previously provided "designated counsel" at its expense to claimants having an eligibility hearing at a port-of-entry, in order to avoid delay in processing claims; this practice was abandoned when decisions on eligibility were transferred away from the IRB in the 1990s.[135] Other provinces have announced the end of legal aid funding for refugee matters, before reversing course. For example, in May 2003 the Attorney General of British Columbia and the Legal Services Society of British Columbia signed a Memorandum of Understanding stating that there would be no funding for immigration and refugee matters after 31 March 2004,[136] a decision that was subsequently reversed.[137]

Most immigration and refugee matters funded by legal aid in Canada in 2016-17 were handled by private bar lawyers (84%), while 11% were handled in specialized clinics, and 5% were handled through staff lawyers.[138] The amount of money that is spent per province varies markedly, as does the volume of immigration and refugee matters:[138]

Number of legal aid certificates Total expenditures (dollars) Expenditure per certificate (dollars)
Alberta 940 642,925 683
BC 1331 2,041,272 1533
Man 354 259,807 733
NL 6 21,634 3605
ON 14716 30,880,850 2098
QC 7040 3,033,283 430

Estimates suggest that more than 70% of refugee claimants rely on legal aid nationally.[139] In FY2019-20, Ontario accounted for 56.5% of all refugee legal aid certificates, & Québec accounted for 31.2%.[131]

British Columbia Legal Services SocietyEdit

In 2016-17, legal aid in British Columbia issued 914 new immigration and refugee legal aid certificates.[138] In British Columbia, the Legal Services Society authorizes 16 hours for case preparation, with an additional 8 hours permitted if there is a second adult client, and a further four hours for any additional adult clients. Lawyers are also paid for their time at the RPD hearing. LSS will pay for up to 10 hours of interpretation services per adult client, with additional hours requiring authorization.[140] The BC Public Interest Advocacy Centre states that these hours rates are "so low they invariably require a subsidy in time and commitment from counsel who accept such retainers to ensure adequate representation."[141] In the 2013-2014 fiscal year, funding was approved for 82 percent of applications by refugee claimants (348 out of 424 applications).[142] The average total cost to BC's Legal Services Society of a refugee claim under the new system in the 2013-2014 fiscal year was $2,062, including disbursements.[143] The average of legal fees charged in private refugee cases in the Western Region in the same time period would appear to have been in the range of $4000.[144] Such limits on legal aid fees have been said to have resulted in "more experienced lawyers [stopping the practice of] asylum and immigration law" in other jurisdictions.[145]

AlbertaEdit

In 2016-17, legal aid in Alberta issued 441 new immigration and refugee legal aid certificates.[138] Certificates in most provinces were predominately handled by private bar lawyers. Alberta was the only province where the percentage of staff lawyer certificates was almost as high as that of private bar certificates (55% versus 44%).[138]

Legal Aid ManitobaEdit

In 2016-17, legal aid in Manitoba issued 315 new immigration and refugee legal aid certificates.[138] In Manitoba, most of the case preparation work is done by two salaried paralegals working with the Manitoba Interfaith Immigration Council.[146] The legal aid tariff in that province provides far fewer hours for work on refugee claims than is allowed under the tariffs in British Columbia, Ontario and Alberta. As of 2019, the Manitoba tariff allows 13 hours for preparation and the first half-day of hearing.[147]

Legal Aid OntarioEdit

In 2016-17, legal aid in Ontario issued 14,716 new immigration and refugee legal aid certificates.[138] Legal Aid Ontario (LAO) provides (as of 2013) counsel with 5 hours to prepare a BOC form, 11 hours to prepare for a refugee hearing, plus the time of the hearing. LAO will pay up to 10 hours of interpretation services in case preparation, with authorization required for any additional time.[148] LAO pays 16 hours to prepare for a RAD hearing (plus an additional four hours and attendance time if the RAD proceeding involves an oral hearing), 15 hours for an application for leave for a judicial review, and 15 hours to prepare for a judicial review (the combination with preparation hours not to exceed 27 hours, plus attendance time).[149]

QuebecEdit

In 2016-17, legal aid in Quebec issued 5592 new immigration and refugee legal aid certificates.[138] Quebec operates a legal aid program for refugee claimants through their Commission des services juridiques (CSJ). The program provides comparatively low-paying legal aid certificates and they have been criticised in the past for their failure to compensate counsel for preparatory and pre-hearing work.[150] A private bar lawyer is paid about 1/4 per case ($430) of what a private bar lawyer in BC is paid ($1533). Thériault asserts that this has led to the development of a refugee law business model where lawyers do not devote as much time to a case as they would otherwise.[151]

RPD Rule 15 - Request to be removed as counsel of recordEdit

Request to be removed as counsel of record
15 (1) To be removed as counsel of record, counsel for a claimant or protected person must first provide to the person represented and to the Minister, if the Minister is a party, a copy of a written request to be removed and then provide the written request to the Division, no later than three working days before the date fixed for the next proceeding.

Oral request
(2) If it is not possible for counsel to make the request in accordance with subrule (1), counsel must appear on the date fixed for the proceeding and make the request to be removed orally before the time fixed for the proceeding.

Division’s permission required
(3) Counsel remains counsel of record unless the request to be removed is granted.

Rule 15(1): To be removed as counsel of record, counsel must first provide to the person represented a copy of a written request to be removedEdit

Rule 15(1) provides that to be removed as counsel of record, counsel must first provide to the person represented a copy of a written request to be removed, and only then provide the written request to the Division. In cases where counsel has not provided to the Division a copy of the written request to be removed sent to the person they represent, applications to be removed as counsel have rightfully been denied as not meeting the requirements of Rule 15(1). It is common practice in this respect for counsel to have written a letter to their client setting out the basis on which they are terminating their retainer and then to enclose that letter to the Board along with their application to be removed as counsel of record.

Board commentary on discretion to refuse requests for counsel to be removed as counsel of recordEdit

Lorne Waldman notes in his text that "the Rules do not specify how the Board is to deal with an application by counsel to be removed."[152] Some guidance on this issue comes from the drafting history for the current version of the rules and the Board's public commentary thereon. When this rule was being drafted and the IRB solicited feedback on it, three respondents provided comments concerning the process to follow to be removed as counsel of record. Specifically, respondents requested that the rule which stipulates that counsel of record remains counsel of record until the request is granted be changed to state that counsel are released as of the Division's receipt of the written notification. While the IRB has noted that it is unlikely to require counsel of record to continue to represent a claimant if a request has been made to the Division in a timely manner, the IRB maintains that it has discretion to deny the request in appropriate circumstances, such as where allowing it would impede the timely progress of a proceeding and cause an injustice. With this in mind, the rule retains its current form.[153]

RPD Rule 16 - Removing counsel of recordEdit

Removing counsel of record
16 (1) To remove counsel as counsel of record, a claimant or protected person must first provide to counsel and to the Minister, if the Minister is a party, a copy of a written notice that counsel is no longer counsel for the claimant or protected person, as the case may be, and then provide the written notice to the Division.

Ceasing to be counsel of record
(2) Counsel ceases to be counsel of record as soon as the Division receives the notice.

ReferencesEdit

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  109. Nagy v Canada (Citizenship and Immigration), 2013 FC 640 at para 44.
  110. Ruiz Lopez v. Canada (Citizenship and Immigration), 2021 FC 390 (CanLII), par. 74, <https://canlii.ca/t/jfr5p#par74>, retrieved on 2021-05-17.
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