Ontario Paralegals take Law Society to court over restrictions on immigration services
Two highly respected Paralegals from Ontario, have filed an application to the Superior Court which details that the Law Society of Ontario has incorrectly restricted paralegals from providing immigration services that include filling out immigration applications. Under current practice, the Law Society only allows paralegals to represent clients before the immigration and Refugee Board.
The Buffalo Tribune had the privilege of being able to interview Tony Caruso and Kashif Ali about this application and to learn more about what the status quo for paralegals is - and how it could be changed.
Caruso started by detailing the current state of affairs, “The issue at hand is that the law of IRPA (Immigration and Refugee Protection Act) clearly mentions three things; paralegals, lawyers, and students-at-law, and we are allowed to practice the full scope of immigration. The Law Society is turning around and basically ignoring Section 91 (2), and they are saying that we (paralegals) need to get a secondary license."
This secondary license, through the Immigration Consultants of Canada Regulatory Council, requires paralegals to complete a one-year graduate course.
Caruso continued by saying that “this affects paralegals, because now we need two insurances, we have to pay for two licenses, everything is just doubled. When legally, under S. 91 (2), it clearly says we are allowed to practice immigration."
Ali followed up by specifying that “S. 91 (2) (b) allows paralegals to provide full-scope immigration services. The Law Society is saying, ‘Well you can practice immigration, but this immigration work has to be restricted to only Immigration and Refugee Board (IRB)’. Section 91 (2) (b) clearly says that paralegals are authorized representatives”.
If paralegals don’t want to be restricted to IRB, and want to perform immigration applications, they need to obtain this secondary license from the ICCRC, and become a member of this secondary professional regulatory body.
When asked about the new graduate course being offered at Queen’s University, Caruso explained: “This course is open to lawyers and paralegals, and this is where I have a problem. The Law Society should have spoken about this to Queens University. If you go to their ‘About’ page, and look at the requirements, it clearly mentions, ‘If a paralegal or lawyer does this course, they have a specialty for immigration’. That’s an issue, because under current laws, paralegals are not allowed to call themselves ‘specialists’."
Under current conditions, a paralegal cannot refer to themselves as a "specialist," as it’s a protected term. Caruso described it as “no different than a paralegal referring to themselves as a lawyer”.
Of course, taking the additional graduate program, and obtaining additional licensing will result in added fees for paralegals, costs depending on where they obtain the course from. Currently, immigration is being taught at some Colleges for the Paralegal Program.
Caruso noted that this requirement should just be for new members who are becoming immigration consultants, “We should not be a part of this requirement, under the law we’re exempt. I’m not an immigration consultant, I don’t plan on becoming an immigration consultant, that’s a different profession. I’m a paralegal, and the law says I can practice the full scope of immigration."
On February 3rd, Ali and Caruso went to Toronto to file their application and serve the Law Society of Ontario. They let the courts know this was an urgent matter, because it involves public interest; being the access to justice.
When asked about the expected response of the Superior Court, Ali pointed out that, “It’s a constitutional issue, so we’re asking the court to look into the law. The Law Society of Ontario has By-Law 4, section 6 which covers the paralegal scope of practice. We’re asking the court to examine if this by-law 4, section 6 is consistent with the federal parliament’s intention of allowing paralegals to provide immigration services for the purpose of better access to justice for the public. By restricting paralegals scope in immigration law, The Law Society clearly frustrates Parliament’s intention."
Caruso added that, “The Law Society has already recognized paralegals when it comes to practicing Immigration law, there was a case law from 2018-2019: Law Society of Ontario V Timothy Edward Leahy. In said case, Judge Morgan stated “(23) In a provision that has no bearing on the Respondent’s Federal Court and advice-giving activities, section 167(1) of the IRPA authorizes the provision of unpaid legal services to persons with cases before the IRB. However, that provision must be read in conjunction with section 91(2) of the IRPA which, as set out above, requires that the provider of such services be a member in good standing of a provincial law society or the ICCRC. In other words, section 167(1) of the IRPA clarifies that the requirement that advocacy be done by a provincially licensed paralegal, lawyer, Quebec notaire, or ICCRC member, applies to services provided on a pro bono as well as a fee-paying basis.”
The two made it clear that they are not seeking any money, all they want is the ability to practice immigration, in order to provide access to justice and to make it affordable for the public.
Caruso additionally referenced that “in 2010, Treasurer Laurie Pawlitza appeared on behalf of the Law Society before the House of Commons committee on Citizenship and Immigration, clearly advocating for paralegals, saying that ‘paralegals are very competent, they must go through CPD training, must graduate from a college and write a P1 exam’ and further stated that becoming members of two regulatory bodies was unnecessary”.
The Law Society’s position was that paralegals should be allowed to provide full scope of immigration services and the government agreed and amended section 91 of IRPA, allowing paralegals to become authorized representatives for immigration services.
What ended up happening in the following year was the introduction of paralegals to IRPA. So, the Law Society allowed paralegals to practice immigration, but one year later suddenly backtracked and stated paralegals must go through the ICCRC for a second license if they want to fill out applications for their clients.
Caruso summarized his comments by saying, “The Law Society still has time to pass the scope of practice for immigration at Convocation. If they pass immigration, we’ll be more than happy to withdraw our application. At the moment, the Law Society is restricting our trade. I reached out to them in 2017, they said they would review it, and it’s been 4 years and I haven’t heard back. That’s why we’re taking this to the court."
Ali added to this, noting how "lawyers are allowed to provide full-immigration services, and we were allowed to provide them as well (excluding appearances before the federal court). It was going to be very competitive for the lawyers. The lawyers would likely have charged more for similar services. I feel like we’re being treated unfairly and discriminated against."
The two made it clear that they have respect for the Law Society, They just want to make sure the law is being followed and is consistent across all documentation, and that paralegals are not unjustly discriminated against, as currently appears to be the case.