Law Society of British Columbia v. Mangat

Law Society of British Columbia v. Mangat
Collection
Supreme Court Judgments
Date
2001-10-18
Neutral citation
2001 SCC 67
Report
[2001] 3 SCR 113
Case number
27108
Judges
McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
British Columbia
Subjects
Constitutional law
Notes
SCC Case Information: 27108
Decision Content
law society of british columbia v. mangat, [2001] 3 S.C.R. 113, 2001 SCC 67
Law Society of British Columbia Appellant
v.
Jaswant Singh Mangat, Westcoast Immigration
Consultants Ltd., and Jill Sparling Respondents
and
The Attorney General of Canada, the Attorney General for
Ontario, the Attorney General of Manitoba, the Attorney
General of British Columbia, the Organization of Professional
Immigration Consultants, the Canadian Bar Association and
the Association of Immigration Counsel of Canada Interveners
Indexed as: Law Society of British Columbia v. Mangat
Neutral citation: 2001 SCC 67.
File No.: 27108.
2001: March 21; 2001: October 18.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for british columbia
Constitutional law -- Distribution of legislative powers -- Paramountcy doctrine -- Naturalization and aliens -- Property and civil rights -- Practice of law -- Federal immigration legislation allowing non-lawyers to appear as counsel for a fee before Immigration and Refugee Board -- Provincial legislation prohibiting non-lawyers from appearing for a fee before a tribunal -- Whether subject matter of federal legislation falling within both Parliament’s jurisdiction over naturalization and aliens and provincial jurisdiction over civil rights -- If so, whether provincial legislation inoperative -- Constitution Act, 1867, ss. 91(25) , 92(13) -- Immigration Act, R.S.C. 1985, c. I-2, ss. 30, 69(1) -- Legal Profession Act, S.B.C. 1987, c. 25, s. 26.
The respondent M was an immigration consultant carrying on his work through an immigration consulting company (“Westcoast”). He had not studied law in Canada and was not a member of the B.C. Law Society. M and other Westcoast employees engaged in a number of activities involving immigration proceedings, including appearing as counsel or advocate on behalf of aliens, for or in the expectation of a fee from the persons for whom the acts were performed, before the Immigration and Refugee Board (“IRB”). The Law Society brought an application seeking a permanent injunction against M and Westcoast to prevent them from engaging in the ongoing practice of law, in contravention of the B.C. Legal Profession Act. M and Westcoast admitted that they were engaged in the practice of law within the meaning of s. 1 of the Legal Profession Act, but contended that their conduct was sanctioned by ss. 30 and 69(1) of the Immigration Act, which permit non-lawyers to appear on behalf of clients before the IRB. The judge issued the injunction on the grounds that ss. 30 and 69(1) of the Immigration Act did not authorize the practice of law. Alternatively, she would have granted the injunction on the basis that the provisions were ultra vires Parliament. The Court of Appeal set aside the injunction. The central issues raised by this appeal are whether ss. 30 and 69(1) of the Immigration Act are intra vires Parliament, and whether s. 26 of the Legal Profession Act, which prohibits a person, other than a member of the Law Society in good standing or a person listed in the exceptions, to engage in the practice of law, is constitutionally inoperative to persons acting under ss. 30 and 69(1) of the Immigration Act and its associated Rules and Regulations. In this Court, the respondent S was added to the proceedings on the basis that she is an immigration consultant and was engaged in the same activities as M, given that M became a member of the Alberta Law Society soon after leave to appeal was granted by this Court.
Held: The appeal should be dismissed.
The pith and substance of ss. 30 and 69(1) of the Immigration Act is the granting of certain rights to aliens in the immigration administrative process. The provisions provide rights to aliens to be represented in proceedings before the Adjudication and the Refugee Divisions by either barristers or solicitors or other counsel for a fee. They also allow aliens to have the benefit of the documents prepared by such counsel for use in these proceedings and to be advised on matters relevant to their case prior to the proceedings. Determining whom aliens may choose to represent them before the Adjudication Division and the Refugee Division pertains to the procedural rights of those individuals in quasi-judicial proceedings. Such a matter falls within Parliament’s jurisdiction over naturalization and aliens pursuant to s. 91(25) of the Constitution Act, 1867 . 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. 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 subject matter of ss. 30 and 69(1) of the Immigration Act also falls within the provincial jurisdiction over civil rights in the province. Sections 30 and 69(1) relate to the legal profession and therefore to professions in general. The provinces have legislative authority to regulate the practice of law under s. 92(13) of the Constitution Act, 1867 as part of their jurisdiction over professional regulation. Lawyers are an integral part of the administration of justice, and thus to that extent provincial legislation in relation to lawyers may very well derive its authority from s. 92(14) as much as s. 92(13) . Insofar as appearing before the IRB in the capacity of counsel involves the practice of law, the subject matter is as much covered by s. 26 of the Legal Profession Act as it is by ss. 30 and 69(1) of the Immigration Act.
Since the subject matter of the representation of aliens by counsel before the IRB has federal and provincial aspects, the federal and provincial statutes and rules or regulations in this regard will coexist insofar as there is no conflict. Where there is a conflict, the federal legislation will prevail according to the paramountcy doctrine. The existence of a double aspect to the subject matter of ss. 30 and 69(1) favours the application of the paramountcy doctrine rather than the doctrine of interjurisdictional immunity. The application of the paramountcy doctrine safeguards the control by Parliament over the administrative tribunals it creates. At the same time, it preserves the principle of a unified control of the legal profession by the various law societies throughout Canada. Immigration in general is subject to a joint federal and provincial jurisdiction. Section 95 of the Constitution Act, 1867 establishes this and itself contains a paramountcy provision. There is no clear boundary between the federal and provincial jurisdiction in this matter generally.
In this case, there is a conflict between the two statutes. Sections 30 and 69(1) of the Immigration Act authorize non-lawyers to appear for a fee, whereas the Legal Profession Act prohibits them from doing so. Dual compliance with both statutes is impossible without frustrating Parliament’s purpose. The Immigration Act must therefore prevail over the Legal Profession Act. Accordingly, the Court grants a declaratory order that ss. 30 and 69(1) of the Immigration Act and its associated Rules and Regulations are intra vires Parliament and that s. 26 of the Legal Profession Act is inoperative to non-lawyers who collect a fee acting under ss. 30 and 69(1) for the purposes of representation before the Adjudication Division or Refugee Division and the provision of services to that end.
Since the provisions of the Immigration Act at issue are valid and paramount over the provisions of the Legal Profession Act, an injunction against M, Westcoast, and S cannot be granted in respect of the activities complained of. Moreover, the question of an injunction is moot as far as M and Westcoast are concerned. M is now a member in good standing of the bar in the provinces of Alberta and Ontario, which entitles him to represent a client before any hearing of the IRB. Westcoast is now dissolved and no longer exists.
Cases Cited
Distinguished: 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), [2001] 2 S.C.R. 241, 2001 SCC 40; referred to: Law Society of British Columbia v. Lawrie (1991), 59 B.C.L.R. (2d) 1; General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641; Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749; Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783, 2000 SCC 31; Union Colliery Co. of British Columbia v. Bryden, [1899] A.C. 580; Cunningham v. Homma, [1903] A.C. 151; Brooks-Bidlake and Whittall, Ltd. v. Attorney-General for British Columbia, [1923] A.C. 450; In re Nakane and Okazake (1908), 13 B.C.R. 370; In re Narain Singh (1908), 13 B.C.R. 477; R. v. Hildebrand, [1919] 3 W.W.R. 286; In Re The Immigration Act and Munshi Singh, [1914] 6 W.W.R. 1347; Lafferty v. Lincoln (1907), 38 S.C.R. 620; Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307; Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R. 157; Black v. Law Society of Alberta, [1989] 1 S.C.R. 591; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860; MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235; R. v. McClure, [2001] 1 S.C.R. 445, 2001 SCC 14; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130; Malartic Hygrade Gold Mines Ltd. v. The Queen in Right of Quebec (1982), 142 D.L.R. (3d) 512; Fortin v. Chrétien, [2001] 2 S.C.R. 500, 2001 SCC 45; Hodge v. The Queen (1883), 9 App. Cas. 117; Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161; O’Grady v. Sparling, [1960] S.C.R. 804; Stephens v. The Queen, [1960] S.C.R. 823; Mann v. The Queen, [1966] S.C.R. 238; Smith v. The Queen, [1960] S.C.R. 776; Attorney-General of Ontario v. Attorney-General for the Dominion of Canada, [1894] A.C. 189; Robinson v. Countrywide Factors Ltd., [1978] 1 S.C.R. 753; Attorney-General for Ontario v. Attorney-General for the Dominion, [1896] A.C. 348; Attorney-General for Ontario v. Barfried Enterprises Ltd., [1963] S.C.R. 570; Papp v. Papp, [1970] 1 O.R. 331; Rio Hotel Ltd. v. New Brunswick (Liquor Licensing Board), [1987] 2 S.C.R. 59; R. v. Furtney, [1991] 3 S.C.R. 89; R. v. Lewis (1997), 155 D.L.R. (4th) 442; R. v. Romanowicz (1999), 45 O.R. (3d) 506; R. v. Zundel, [1992] 2 S.C.R. 731; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Bank of Montreal v. Hall, [1990] 1 S.C.R. 121; M & D Farm Ltd. v. Manitoba Agricultural Credit Corp., [1999] 2 S.C.R. 961; Crown Grain Co. v. Day, [1908] A.C. 504.
Statutes and Regulations Cited
Adjudication Division Rules, SOR/93-47, s. 2.
Aeronautics Act, R.S.C. 1985, c. A-2, s. 37(2) [ad. c. 33 (1st Supp.), s. 5 ].
Canada Elections Act, R.S.C. 1985, c. E-2.
Canadian Charter of Rights and Freedoms .
Canadian International Trade Tribunal Act, R.S.C. 1985, c. 47 (4th Supp .), s. 31 .
Constitution Act, 1867, ss. 91 , 91(25) , 92 , 92(13) , (14) , 95 .
Convention Refugee Determination Division Rules, SOR/93-45, s. 2.
Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 140(7) .
Expropriation Act, R.S.B.C. 1996, c. 125, s. 14(4)(a).
Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165, s. 56(5).
Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181, s. 29(3).
Immigration Act, R.S.C. 1985, c. I-2, ss. 3, 29(5), 30 [rep. & sub. c. 28 (4th Supp.), s. 9; am. 1990, c. 8, s. 51; rep. & sub. 1992, c. 49, s. 19], 32, 57(1), 61(2), 63.3, 64(3), 68(2), (3), 68.1, 69 [am. c. 10 (2nd Supp.), s. 5; rep. & sub. c. 28 (4th Supp.), s. 18; am. 1992, c. 49, s. 59], 69.1(1), 70, 77(3), 80.1(4), (5), 114(1)(v) [rep. & sub. c. 28 (4th Supp.), s. 29].
Immigration Act, 1869, S.C. 1869, c. 10, preamble.
Legal Profession Act, S.B.C. 1987, c. 25 [now S.B.C. 1998, c. 9], ss. 1, 26, 100.
Patent Act, R.S.C. 1985, c. P-4, s. 15 [rep. & sub. c. 33 (3rd Supp.), s. 4 ].
Pension Act, R.S.C. 1985, c. P-6, s. 88 [am. 1990, c. 43, s. 26; repl. 1995, c. 18, art. 73].
Pilotage Act, R.S.C. 1985, c. P-14, s. 28(1) .
Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10, s. 47.1 [rep. & sub. c. 8 (2nd Supp.), s. 18].
Status of the Artist Act, S.C. 1992, c. 33, s. 19(3) .
Trade-marks Act, R.S.C. 1985, c. T-13, s. 28(1) (f) [rep. & sub. 1993, c. 15, s. 62].
Authors Cited
Bagambiire, Davies B. N. Canadian Immigration and Refugee Law. Aurora, Ont. : Canada Law Book, 1996.
Casey, James T. The Regulation of Professions in Canada. Scarborough, Ont.: Carswell, 1994 (loose-leaf updated 2001, release 1).
Cory, Peter deC. A Framework for Regulating Paralegal Practice in Ontario. Toronto: Ministry of the Attorney General, 2000.
Hogg, Peter W. Constitutional Law of Canada, loose-leaf ed. Scarborough, Ont.: Carswell, 1997 (update 2000, release 1).
Waldman, Lorne. Immigration Law and Practice, vol. 1. Markham, Ont.: Butterworths, 1992 (loose-leaf updated April 2001, issue 37).
APPEAL from a judgment of the British Columbia Court of Appeal (1998), 167 D.L.R. (4th) 723, 115 B.C.A.C. 50, 58 B.C.L.R. (3d) 280, 48 Imm. L.R. (2d) 170, [1999] 6 W.W.R. 588, [1998] B.C.J. No. 2756 (QL), setting aside a decision of the Supreme Court of British Columbia (1997), 149 D.L.R. (4th) 736, 41 B.C.L.R. (3d) 205, [1998] 4 W.W.R. 790, [1997] B.C.J. No. 1883 (QL). Appeal dismissed.
William S. Berardino, Q.C., and Elizabeth B. Lyall, for the appellant.
Richard R. Sugden, Q.C., and Craig P. Dennis, for the respondent Mangat.
Jack Giles, Q.C., and Susan B. Horne, for the respondent Sparling.
Urszula Kaczmarczyk, Kevin Lunney and Brenda Carbonell, for the intervener the Attorney General of Canada.
Michel Y. Hélie, for the intervener the Attorney General for Ontario.
Rodney G. Garson, for the intervener the Attorney General of Manitoba.
Neena Sharma, for the intervener the Attorney General of British Columbia.
Jack Giles, Q.C., and Susan B. Horne, for the intervener the Organization of Professional Immigration Consultants.
Mira J. Thow, for the intervener the Canadian Bar Association.
Malcolm N. Ruby, for the intervener the Association of Immigration Counsel of Canada.
The judgment of the Court was delivered by
Gonthier J. –
I. Introduction
1 The central issues raised by this appeal are whether ss. 30 and 69(1) of the Immigration Act, R.S.C. 1985, c. I-2, are intra vires the federal Parliament, and whether a provision of the Legal Profession Act (then S.B.C. 1987, c. 25, s. 26; now S.B.C. 1998, c. 9, s. 15) which prohibits a person, other than a member of the Law Society in good standing or a person listed in the exceptions, to engage in the practice of law is constitutionally inoperative or inapplicable to persons acting under ss. 30 and 69(1) of the Immigration Act and its associated Rules and Regulations.
II. Facts
2 At the time of the trial, the respondent Mangat was an immigration consultant holding a law degree from Punjab University in India. He had not studied law in Canada and was not a member of the Law Society of British Columbia. He carried on his work through Westcoast Immigration Consultants Ltd. (“Westcoast”), an immigration consulting company (which no longer exists).
3 Mr. Mangat and other employees of Westcoast engaged in a number of activities with respect to immigration proceedings. They appeared as counsel or advocate on behalf of aliens, for or in the expectation of a fee, reward, or gain from the persons for whom the acts were performed, before the Immigration and Refugee Board (“IRB”). They also drew, revised, or settled documents relating to proceedings before this tribunal, and gave legal advice and held themselves out as being entitled and qualified to provide the services in this regard.
4 In the course of their practice, the respondent Mangat and his associate consultants asked their clients to sign a fee agreement where they acknowledged that the respondents were immigration consultants and not members of the Law Society of British Columbia. The clients were told that they could avail themselves of legal aid services or of the services of a barrister or a solicitor who was a member of the Law Society. If the matter went beyond the IRB to the Federal Court, the respondents’ involvement ceased.
5 On July 14, 1986, the appellant wrote to Mr. and Mrs. Mangat regarding an advertisement placed in the Indo-Canadian Times in which the respondents allegedly offered legal advice on various matters concerning immigration to Canada and held themselves out as entitled to practise law. At the time, the appellant warned the respondents about the penalties for the illegal practice of law and asked for an explanation in writing by August 11, 1986, before taking any remedial action. Mr. Mangat replied on August 8, 1986, stating that neither he nor Mrs. Mangat had ever practised or held themselves out as practising law. He added that they were fully entitled to use the B.A. and LL.B. designations. However, to avoid any further misunderstanding he offered to make some changes to the advertisement, namely to add the words “Immigration Consultants”. The appellant wrote back on September 22, 1986, and stated that the Professional Standards Committee had resolved that it would accept Mr. Mangat’s assurances and that no further action would be taken.
6 Despite this resolution, on March 22, 1994, the appellant brought an application in the British Columbia Supreme Court seeking a permanent injunction against the respondents Mangat and Westcoast to prevent them from engaging in the ongoing practice of law, in contravention of British Columbia’s Legal Profession Act. On August 14, 1997, Koenigsberg J. granted the following injunction against the respondents Mangat and Westcoast prohibiting and enjoining them from:
(a) appearing as counsel or advocate for or in the expectation of a fee, gain or reward, direct or indirect, from the persons for whom the acts are performed;
(b) drawing, revising or settling documents for use in judicial or extra-judicial proceedings for or in the expectation of a fee, gain or reward, direct or indirect, from the persons for whom the acts are performed;
(c) drawing, revising or settling documents relating in any way to proceedings under a statute of Canada or the province for or in the expectation of a fee, gain or reward, direct or indirect, from the persons for whom the acts are performed;
(d) giving legal advice for or in the expectation of a fee, gain or reward, direct or indirect, from the persons for whom the acts are performed; and
(e) offering to or holding themselves out in any way as being entitled or qualified to provide the services listed at paragraphs (a) to (d) inclusive, for or in the expectation of a fee, gain or reward, direct or indirect, from the persons for whom the acts are performed.
On November 27, 1997, she also ordered that each party bear its own costs because the respondents were singled out as a test case among several potential defendants and because of the vagueness of the disputed legislation.
7 On August 18, 1997, the respondents filed a notice of appeal to the Court of Appeal of British Columbia. On November 27, 1998, the Court of Appeal unanimously vacated the injunction in its entirety, but did so on different grounds. Southin J.A. allowed the appeal on the basis of the doctrine of interjurisdictional immunity. Mackenzie and Hollinrake JJ.A. concurred in the result, but would have allowed the appeal on the basis of the doctrine of paramountcy.
8 Leave to appeal to this Court was granted on November 10, 1999. Mr. Mangat filed evidence that he has now become a member in good standing of the Alberta Law Society and that his consulting company Westcoast was dissolved when he relocated to Alberta in 1999. As a result, on May 24, 2000, the Court heard a motion by the respondents to quash the appeal as moot and a motion by the Law Society to add the respondent Sparling to the proceedings. Iacobucci J., on behalf of the Court, declined to quash the appeal, but ordered the appellant to pay Mr. Mangat fair and reasonable costs of the motion and appeal, and ordered the addition of Ms. Sparling to the proceedings on the basis that she is an immigration consultant in Vancouver and was engaged in the same range of activities as Mr. Mangat. She is also the current president of the Organization of Professional Immigration Consultants, which appeared as an intervener before this Court.
9 At the appeal hearing, counsel for the respondent Mangat further stated that his client was now a member in good standing of the Law Society of Upper Canada. He added that he had also applied to be a member of the appellant, the Law Society of British Columbia, but for some reason the appellant decided to hold a credentials hearing to determine whether he could be admitted.
III. Relevant Statutory Provisions
10 Legal Profession Act, S.B.C. 1987, c. 25 (subsequently R.S.B.C. 1996, c. 255, ss. 1, 26, 109; now S.B.C. 1998, c. 9, ss. 1, 15, 85(5) to (8))
1. In this Act
. . .
“practice of law” includes
(a) appearing as counsel or advocate,
(b) drawing, revising or settling
(i) a petition, memorandum or articles under the Company Act, or an application, statement, affidavit, minute, resolution, bylaw or other document relating to the incorporation, registration, organization, reorganization, dissolution or winding up of a corporate body,
(ii) a document for use in a proceeding, judicial or extra-judicial,
(iii) a will, deed of settlement, trust deed, power of attorney or a document relating to any probate or letters of administration or the estate of a deceased person,
(iv) a document relating in any way to proceedings under a statute of Canada or the Province, or
(v) an instrument relating to real or personal estate which is intended, permitted or required to be registered, recorded or filed in a registry or other public office,
(c) doing any act or negotiating in any way for the settlement of, or settling, a claim or demand for damages,
(d) agreeing to place at the disposal of another person the services of a barrister or solicitor,
(e) giving legal advice,
(f) the making of an offer to do anything referred to in paragraphs (a) to (e), and
(g) the making of a representation by a person that the person is qualified or entitled to do anything referred to in paragraphs (a) to (e),
but it does not include
(h) any of those acts if it is not done for or in the expectation of a fee, gain or reward, direct or indirect, from the person for whom the acts are performed,
(i) the drawing or preparing of an instrument by a public officer in the course of his duty,
(j) the lawful practice of a notary public,
(k) the usual business carried on by an insurance adjuster who is licensed under Part 10 of the Insurance Act, or
(l) agreeing to do something referred to in paragraph (d), where the agreement is pursuant to a prepaid legal services plan or other liability insurance program;
26. (1) Subject to subsections (3), (4) and (5), no person, other than a member of the society in good standing, shall engage in the practice of law, except
(a) an individual acting on his own behalf in a proceeding to which he is a party,
(b) as permitted by the Court Agent Act,
(c) articled students, to the extent permitted by the benchers, and
(d) an individual or articled student referred to in section 9 of the Legal Services Society Act.
(2) A person who is employed by a member, a firm of members or the Province and who acts under the supervision of a member does not contravene subsection (1).
(3) The benchers may permit a barrister or solicitor of another province or territory
(a) to act as a solicitor on a particular matter, or
(b) to appear as counsel in the Province on a particular cause or matter
subject to any conditions, including the payment of a fee, required by the benchers.
(4) The benchers may permit a person who holds professional legal qualifications obtained in a country other than Canada, to give legal advice respecting the laws of that country, subject to any conditions, including the payment of a fee, required by the benchers.
(5) The provisions of Part 6 apply to a person given permission under subsection (3) or (4), but the benchers have no power to disbar that person.
100. (1) The Supreme Court may, on the application of the society and on being satisfied that there is reason to believe that there is or will be a contravention of this Act or a rule made under it, grant an injunction restraining a person from committing it, and, pending disposition of the action seeking the injunction, the court may grant an interim injunction.
(2) Subject to the Court Agent Act, a person who, not being a member of the society or a party to the proceeding, commences, prosecutes or defends a court proceeding in his own name or in the name of another person may, on the application of the society or of any person interested in the proceeding, be found in contempt by the court in which the proceeding is brought, and may be punished accordingly.
Immigration Act, R.S.C. 1985, c. I-2
30. Every person with respect to whom an inquiry [by an adjudicator] is to be held shall be informed of the person’s right to obtain the services of a barrister or solicitor or other counsel and to be represented by any such counsel at the inquiry and shall be given a reasonable opportunity, if the person so desires, to obtain such counsel at the person’s own expense.
69. (1) In any proceedings before the Refugee Division, the Minister may be represented at the proceedings by counsel or an agent and the person who is the subject of the proceedings may, at that person’s own expense, be represented by a barrister or solicitor or other counsel.
114. (1) The Governor in Council may make regulations
. . .
(v) requiring any person, other than a person who is a member of the bar of any province, to make an application for and obtain a licence from such authority as is prescribed before the person may appear before an adjudicator, the Refugee Division or the Appeal Division as counsel for any fee, reward or other form of remuneration whatever;
Adjudication Division Rules, SOR/93-47, s. 2
“counsel” means a person who represents a party in any proceeding before the Adjudication Division;
Convention Refugee Determination Division Rules, SOR/93-45, s. 2
. . .
“counsel” means a person authorized pursuant to subsection 69(1) of the Act to represent a party in any proceeding before the Refugee Division;
Constitution Act, 1867
91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next herein-after enumerated; that is to say, –
. . .
25. Naturalization and Aliens.
. . .
And any Matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come within the Class of Matters of a local or private Nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.
92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next herein-after enumerated; that is to say, –
. . .
13. Property and Civil Rights in the Province.
14. The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.
95. In each Province the Legislature may make Laws in relation to Agriculture in the Province, and to Immigration into the Province; and it is hereby declared that the Parliament of Canada may from Time to Time make Laws in relation to Agriculture in all or any of the Provinces, and to Immigration into all or any of the Provinces; and any Law of the Legislature of a Province relative to Agriculture or to Immigration shall have effect in and for the Province as long and as far only as it is not repugnant to any Act of the Parliament of Canada.
IV. Judgments Below
A. British Columbia Supreme Court (1997), 149 D.L.R. (4th) 736
11 Before Koenigsberg J., the respondents Mangat and Westcoast admitted that they were engaged in the practice of law within the meaning of s. 1 of the Legal Profession Act, but contended that their conduct was sanctioned by ss. 30 and 69(1) of the Immigration Act, which permit non-lawyers to appear on behalf of clients before the IRB. Koenigsberg J. held that the threshold question was whether the Immigration Act authorizes the practice of law. She concluded that the Immigration Act does not authorize the practice of law and therefore does not shield the respondents from the requirements of the Legal Profession Act. She held that, there was no rational connection between the stated policy of the Immigration Act or the requirements that hearings be conducted as informally and expeditiously as possible and the authorizing of untrained, unqualified, or unregulated persons to appear before the IRB representing persons for a fee. She held that although unpaid agents could represent aliens, ss. 30 and 69(1) authorize the paid employment of other licensed counsel, and that only lawyers are licensed in the absence of an alternative licensing regime established under s. 114(1)(v) of the Immigration Act. Relying on the reasoning of the Court of Appeal of British Columbia in Law Society of British Columbia v. Lawrie (1991), 59 B.C.L.R. (2d) 1, she stated that the protection of the public is best served by requiring that persons appearing before immigration tribunals as counsel be licensed, and that the objectives of the Immigration Act are not served by authorizing a different class of professional to represent persons. Finally, having regard to constitutional norms, this interpretation avoids creating a conflict between federal and provincial laws.
12 While Koenigsberg J. disposed of the appeal on this basis, she nevertheless considered the constitutional issues in the event that she erred in her conclusion. She accepted that both the Legal Profession Act and the Immigration Act are each a valid exercise of power within the constitutional jurisdiction of the respective governments, specifying that the Immigration Act fell within ss. 91(25) and 95 of the Constitution Act, 1867 . Applying the framework set out in General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641, she then held that the Immigration Act is a valid regulatory scheme, but one that makes a substantial intrusion into the provincial power with respect to the regulation of law in the province because the creation of an unregulated profession of the practice of law leaves the public unprotected. In her view, without ensuring a standard for the practice of law by creating a licensing body, there was no rational connection between such an intrusion and the stated policy or the requirements that hearings be conducted informally. She concluded that ss. 30 and 69(1) of the Immigration Act were ultra vires Parliament insofar as they authorize the practice of law by non-lawyers.
13 In addition, Koenigsberg J. held that the interjurisdictional immunity doctrine did not apply in this case on the grounds that it is restricted to cases involving federal undertakings (including federal works, things, or persons). Indeed, constitutional jurisprudence has approached the creation of interjurisdictional immunities consciously, with the design of a flexible federal system in mind. Finally, she noted that the paramountcy doctrine also does not apply given that the potentially conflicting federal legislation is ultra vires.
14 Since she found that a number of the respondents’ activities constituted the unlawful practice of law within the meaning of the Legal Profession Act and were therefore outside the ambit of the Immigration Act, Koenigsberg J. issued the injunction on the grounds that the Immigration Act did not authorize the practice of law. Alternatively, she would have granted the injunction on the basis that the provisions were ultra vires Parliament.
B. British Columbia Court of Appeal (1998), 167 D.L.R. (4th) 723
1. Southin J.A.
15 Southin J.A. began by noting that the injunction was far too broad in its terms and instead should have been limited to the conduct complained of. She then examined the assumption made by Koenigsberg J. that “practice of law” is a valid head of power. In her view, s. 92 of the Constitution Act, 1867 contained no such provision and the issue has not been squarely settled by this Court. The question must therefore be whether the provincial legislature has the power pursuant to s. 92 (as a matter of civil rights or administration of justice in the province) to prohibit persons from appearing before tribunals established by Parliament under s. 91 (as part of the immigration process).
16 Southin J.A. held that it was an essential attribute of every tribunal to have control over who may or may not appear before it or draw up the papers necessary for its business to be carried on and that it fell within the jurisdiction of the legislative authority which created the tribunal to control all matters relating to that tribunal. Therefore, although there is some support for the proposition that the Legal Profession Act was a valid exercise of the power of a province to regulate civil rights, she concluded that the constitution, organization, practice, and procedure of tribunals established under the Immigration Act were matters within the classes of subjects enumerated in s. 91 . She defended this conclusion by noting that a federal tribunal can sit in any province and that it would make no sense to require counsel called in one province to seek approval from the law society of another province before appearing before that tribunal when sitting in that other province.
17 As an aside, Southin J.A. noted that s. 95 of the Constitution Act, 1867 does not appear to confer upon the provinces the ability to legislate concerning the procedure before tribunals established under the Immigration Act and that, in any event, Parliament has already legislated in that respect, in which case the provincial provisions would be repugnant to the federal provisions. She therefore allowed the appeal and set aside the injunction.
2. Mackenzie J.A. (concurred in by Hollinrake J.A.)
18 Mackenzie J.A. reached the same result as that arrived at by Southin J.A., but by a different route. He held that the relevant provisions of the Immigration Act were constitutionally valid falling within both ss. 91(25) and 95 , and stated that the validity of the provisions of the Legal Profession Act was not in issue. However, to the extent that they conflict, the Legal Profession Act was inoperative by virtue of the paramountcy doctrine, rather than being inapplicable by virtue of the doctrine of interjurisdictional immunity.
19 Mackenzie J.A. first noted that the appellant conceded that if the Governor in Council had made regulations licensing other counsel and dealing with their qualifications and standards, the Law Society could not successfully challenge their activities. However, in the absence of such a scheme, the Law Society argued that ss. 30 and 69(1) of the Immigration Act must be interpreted as being limited to unpaid counsel. In Mackenzie J.A.’s view, references to “other counsel” include paid non-lawyers. The fact that ss. 30 and 69(1) do not require “other counsel” to be licensed and that the power to make regulations under s. 114(1)(v) is merely permissive and that it has not been exercised has no impact on the plain meaning of the statutory provision. Concerns about the public interest going unprotected were misplaced, as Parliament gave the Governor in Council power to regulate in this area.
20 While this conclusion disposed of the appeal, given the appellant’s concession, Mackenzie J.A. explored the broader constitutional issues. Accepting that both pieces of legislation are valid, he first held that the doctrine of interjurisdictional immunity was inapplicable in this case. Relying on the rule set out in Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749, Mackenzie J.A. found that the regulation of legal services provided to persons within the aliens category does not threaten the core of the federal jurisdiction. Moreover, immunity would be inconsistent with the fact that Parliament contemplated a role for provincially regulated lawyers within the Immigration Act and that s. 95 of the Constitution Act, 1867 itself contemplates concurrent federal and provincial jurisdiction with respect to immigration into a province (Mackenzie J.A. found that the federal power over this statute derives from both ss. 91(25) and 95 ). Instead, Mackenzie J.A. held that the conflict is best resolved under the paramountcy doctrine. Paramountcy, however, only insulates the respondents’ activities from the Legal Profession Act to the extent that they fall within the ambit of ss. 30 and 69(1) of the Immigration Act. Mackenzie J.A. stated that the Law Society might be entitled to an injunction restraining activities that are within the scope of the Legal Profession Act and beyond the protection of the Immigration Act, but the question of a more limited injunction was not addressed in argument and therefore such an order could not be made. Accordingly, Mackenzie J.A. allowed the appeal and vacated the injunction.
V. Issues
21 On September 21, 2000, McLachlin C.J. certified the following constitutional question:
1. Is s. 26 of the Legal Profession Act, S.B.C. 1987, c. 25, constitutionally inoperative or inapplicable to persons acting under ss. 30 and 69 of the Immigration Act, R.S.C. 1985, c. I-2, and its associated Rules and Regulations and, if so, are the latter provisions ultra vires Parliament?
22 A more detailed exposition of the issues contemplated by this question involves asking first whether ss. 30 and 69(1) of the Immigration Act and its associated Rules and Regulations are intra vires Parliament. If the answer to this question is in the affirmative, it should then be asked whether s. 26 (now s. 15) of the Legal Profession Act is inoperative or inapplicable to persons acting under ss. 30 and 69(1) of the Immigration Act. This reformulation serves the purpose of corresponding to the order of the analysis undertaken here and does not affect the substance of the stated constitutional question.
VI. Analysis
23 First, determining the pith and substance of ss. 30 and 69(1) of the Immigration Act, I conclude that those provisions provide certain rights for aliens before the IRB, namely the right to be represented by barristers, solicitors, or other counsel for a fee before the Adjudication Division and the Refugee Division of the IRB. They also allow aliens to have the benefit of the documents prepared by such counsel for use in