Last Updated on February 16, 2013
The British Columbia Supreme Court in a recent ruling, (The Law Society Of British Columbia vs. Jaswant Singh Mangat and Westcoast Immigration Consultants Ltd., SCBC August 14, 1997 (unreported)), issued a permanent injunction prohibiting an immigration consultant and his corporate entity from rendering legal advice for fees, a practice restricted to licensed lawyers.
The ruling also provides analysis of certain provisions of the Immigration Act dealing with the practice of law, and concludes that specific provisions of the Act are ultra vires the Parliament of Canada.
The application brought in 1993 by the Law Society of British Columbia, sought to prevent the immigration consultant Jaswant Singh Mangat and his corporate entity, Westcoast Immigration Consultants Ltd., from engaging in the ongoing practice of law in that province. The trial was conducted over a four day period in January 1997 and included testimony from former clients of the defendants. The 38 page written decision was rendered on August 14, 1997 by the Honorable Madam Justice Keonigsberg.
Jaswant Singh Mangat since 1970, has been engaged in the Canadian immigration consultancy field. He possesses a law degree from India. Mr. Singh Mangat provides consultancy services through his corporate entity, Westcoast Immigration Consultants Ltd.
The Legal Profession Act, S.B.C. 1987, c.25, empowers the Law Society to regulate the practice of law and enumerates the parameters within which all lawyers in the province of British Columbia must operate. Neither Mr. Mangat nor any person employed by or listed as an officer of Westcoast was a member of the Law Society.
The Law Society maintains that Mr. Mangat and his company are practicing law outside the essential infrastructure established by the Legal Profession Act and its attendant enactments.
The defendants admit that in providing immigration consultancy services, they engage in the practice of law as defined in the Legal Profession Act and are authorized to do so pursuant to the Immigration Act.
- Whether the activities of the defendants constitute the practice of law as defined by the Legal Profession Act.
- Whether the Legal Profession Act prohibits the defendants from engaging in the practice of law and therefore whether the Act empowers the Court to grant the injunctions sought.
- Whether the Legal Profession Act is valid provincial legislation.
- Whether the defendants are authorized to practice law by sections 30 and 69 of the federal Immigration Act.
- In the event that sections 30 and 69 do authorize the defendants to engage in the practice of law, whether those provisions are ultra vires the federal parliament.
The activities of the defendants fall within the practice of law. The Immigration Act does not authorize the practice of law. Section 26 of the Legal Profession Act validly prohibits the defendants from engaging in the practice of law. Section 100 empowers the court to grant the injunction sought. In the event that the Immigration Act does authorize the practice of law, then the injunction would still be granted on the basis that the provisions of the Immigration Act, insofar as they authorize the practice of law, are ultra vires the parliament of Canada.
The injunction prohibits the defendant from a number of activities which are linked to receiving a fee. The defendants would not have been found to be in violation of the Legal Profession Act had they provided the services in question at no charge – as many charitable public interest groups in the field do. It was this group of free service providers that the Judge expressly recognized as being contemplated by the Immigration Act.
Canada’s Minister of Citizenship & Immigration Minister, the Honorable Lucienne Robillard has publicly stated that immigrants should have a choice between lawyers and laymen when they need someone to advise them or represent them before federal tribunals. Madame Robillard acknowledges the ongoing problem with consultants: “I think the need is to regulate the consultants, not to abolish that function”.
It should be emphasized however that the Minister’s viewpoint although interesting, has an underlying motive. With the continued trend towards increased cutbacks in the public service, employment in the public service no longer provides for the remunerative benefit packages and employment security that was once provided to public service employees in the past. Moreover, and in the opinion of the author of this commentary, the current Minister and the philosophy of former Minister’s favoring a role for immigration consultants, is more of an attempt to provide an avenue for current public service officials to be able to continue in the immigration field, with recognized standing, when the “golden boot” is extended to multiple year service employees, pursuant to a Department downsizing initiative.
Moreover, the Minister having expressly come out in favor of non lawyers in the field is interestingly contrasted with the fact that whenever an issue arises in a dossier that requires the input of “counsel”, counsel will not involve, from the Minister’s perspective, an immigration consultant. In fact, counsel will involve either the Department’s in-house team of lawyers or the Department’s “contracted-out” team of lawyers provided by the Department of Justice. The staffing at Justice on immigration dossiers do not comprise of immigration consultants.
Interestingly, with the number of inconsistencies taking hold in the Canadian immigration field today, a substantial and increasing portion of the Department of Justice’s annual operating budget is being allocated to defending (through its team of lawyers), the Department of Citizenship & Immigration’s positions.
Indeed, one wonders just how serious the Honorable Minister was when she publicly stated that a role should also exist for regulated immigration consultants. Regulation with its objective of protecting the public has already been accomplished by each of the provincial and territorial law societies.
Readers are advised that although the effects of the Mangat decision have been temporarily suspended pending the outcome of an appeal process, a word of caution is in order. The Unauthorized Practice Committee at the Law Society of British Columbia (Tel: 604-443-5701) will continue to take action against individuals who engage in the unauthorized practice of consulting (i.e. for a fee), where there is:
- An immediate or imminent presence of harm being caused to the public;
- Where one calls himself/herself a lawyer and is unauthorized to do so.
Other provincial law societies are now carefully assessing the merits of the Mangat ruling within the context of launching their own proceedings against individuals engaged in the unauthorized practice of immigration consultancy.
Regardless of the outcome of this appeal process, readers have now been clearly forewarned by a ranking member of the British Columbia judiciary on the disadvantages of engaging the services of a non- lawyer in the Canadian immigration field.
- “The Barristers and Solicitors Act provides for qualifications to practice law, the discipline of lawyers (including disbarment), insurance, trust account rules and funds for client compensation. The primary purpose of this is to provide protection, as far as possible, for the general public who pay for legal services.”
“This protection of the public lies at the heart of the restrictions upon non-lawyers practicing law”.
(Madam Justice Koenigsberg at page 24, Mangat, supra).
Additional considerations on selecting legal counsel may be obtained from our writing “Engaging Legal Counsel” which can be accessed from our award winning “Five Star Law Information” World Wide Web site: https://www.immigration.ca