Canadian Society of Immigration Consultants v. Canada (Citizenship and Immigration)

Canadian Society of Immigration Consultants v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2011-12-08
Neutral citation
2011 FC 1435
File numbers
IMM-5039-11
Notes
Reported Decision
Decision Content
Date: 20111208
Docket: IMM-5039-11
Citation: 2011 FC 1435
Ottawa, Ontario, December 8, 2011
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
THE CANADIAN SOCIETY OF IMMIGRATION CONSULTANTS
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This application invites the Court to address the scope of judicial review of regulations dealing with immigration consultants in light of such fundamental principles and Canadian values, as the rule of law and the separation of powers.
I. INTRODUCTION
[2] The Canadian Society of Immigration Consultants (CSIC), the applicant in this judicial review, is a corporation without share capital constituted on October 8, 2003 under Part II of the Canada Corporations Act, RSC 1970, c C-32 to fulfill the role of an independent self-regulating body and which operates at arm’s length from the Government.
[3] The letters patent of the applicant provide that it shall regulate immigration consultants in the public interest and in so doing shall establish a code of conduct, a complaint and disciplinary procedure, an educational program, and a compensation fund with respect to acts and omissions of its members.
[4] From April 13, 2004 to June 30, 2011, the applicant has acted as the sole regulatory body of immigration consultants in Canada whose members are legally authorized to advise, consult with, and represent individuals involved in proceedings under the Immigration and Refugee Protection Act, SC 2001, c 27 (the Act) and its regulations: sections 2 and 13.1 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (IRPR), as modified by SOR/2004‑59 (the 2004 Regulations).
[5] The applicant challenges the legality of the following enactments:
(a) The Order Fixing June 30, 2011 as the Day on which Chapter 8 of the Statutes of Canada Comes into Force (SI/2011-731) (GIC Order);
(b) The Regulations Amending the Immigration and Refugee Protection Regulations (SOR/2011-129) (2011 Regulations); and
(c) The Regulations Designating a Body for the Purposes of Paragraph 91(2)(c) of the Immigration and Refugee Protection Act (SOR/2011‑142) (Ministerial Regulations).
[6] As of June 30, 2011, concurrently with the coming into force (the GIC Order) of An Act to Amend the Immigration and Refugee Protection Act, SC 2011, c 27, previously known as Bill C-35, the applicant’s designation as the regulator of the immigration consultants is revoked (the 2011 Regulations) and the Immigration Consultants of Canada Regulatory Council (ICCRC) is designated as the new regulator (the Ministerial Regulations).
[7] Although the applicant treats the impugned enactments as a single “decision”, formally speaking, the GIC Order and the 2011 Regulations are made by the Governor in Council (Cabinet), while the Ministerial Regulations are made by the Minister of Citizenship and Immigration (the Minister), the present respondent. More particularly, the impugned enactments are respectively made under the purported authority of section 7 of Bill C-35 (the GIC Order); subsection 5(1), section 14 and former section 91 of the Act (the 2011 Regulations); and new subsections 91(5) and (7) of the Act, as amended by section 1 of Bill C-35 (the Ministerial Regulations).
[8] Both the GIC Order and the 2011 Regulations were published in Part II of the Canada Gazette on July 6, 2011. The Ministerial Regulations along with the Regulatory Impact Analysis Statement (RIAS) were published in Part II of the Canada Gazette on July 20, 2011 (the July RIAS). There was no prepublication of any of the impugned enactments (SI/2011-731, SOR/2011-129 and SOR/2011‑142). That said, on March 19, 2011, regulatory amendments to the IRPR that would have substantially the same effect as the 2011 Regulations and the Ministerial Regulations were pre-published in Part I of the Canada Gazette along with a Regulatory Impact Analysis Statement (the March RIAS).
[9] The applicant submits that the enactments revoking the CSIC’s designation (the 2011 Regulations) and designating the ICCRC as the new regulator (the Ministerial Regulations) are ultra vires and exceed the regulation-making authority under (former or new) section 91 of the Act on the grounds of abuse of discretion, bad faith, and reliance upon irrelevant considerations. The applicant also submits that the making of both the 2011 Regulations and the Ministerial Regulations is contrary to the applicant’s legitimate expectations and right to be heard, while the conduct by the Minister and his staff at Citizenship and Immigration Canada (CIC) raises a reasonable apprehension of bias. Finally, the enactment of the GIC Order violates the procedural requirements of section 9 of the Statutory Instruments Act, RSC 1985, c S-22 (the SIA), and the Ministerial Regulations are otherwise invalid in law because they were made prior to the coming into force of Bill C-35.
[10] To the contrary, the respondent submits that the impugned enactments are authorized by Parliament and it is not the function of the Court to examine the reasonableness of regulatory enactments or to criticise policy choices made by Parliament or the Government. In any event, there is no proof of bad faith, improper motive or actual bias. Moreover, rules of procedural fairness do not apply to legislation-making and whatever participatory rights the applicant might have had, they have been amply satisfied. Finally, all procedural requirements found in the SIA were followed and section 7 of the Interpretation Act, RSC 1985, c I-21 permits the making of regulations prior to the coming into force of legislation. Thus, the impugned enactments are valid in law.
[11] Having considered the totality of the evidence, the applicable law and relevant case law, the present application must fail. The Court finds that the impugned enactments are authorized by statute and validly came into force on June 30, 2011. In principle, regulations or policy decisions are not reviewable, except in cases of excess of jurisdiction or failure to comply with legislative or regulatory requirements. As far as any duty to consult is concerned, it has been satisfied in this case. The process of selecting a new regulatory body, in which the applicant was allowed to participate, was fair and transparent. This is not “an egregious case” where the intervention of the Court is warranted to uphold the rule of law.
II. FACTUAL AND CONTEXTUAL BACKGROUND
[12] The present application is somewhat a continuation of the litigation that commenced in spring 2011 when the Government announced its intention to remove the reference to the applicant from the definition of “authorized representative” in section 2 of the IRPR, as modified by the 2004 Regulations, and replace it with the ICCRC. But before examining the spring and summer of 2011 events, it is necessary to go back to the early 2000s when it was decided to federally regulate the occupation of immigration consultant.
The 2004 Regulations
[13] Self-governing professions have a long history in Canada – legal and medical professions were already established in the pre-Confederation era – but until the turn of the century, the idea that immigration consultants constituted a group of professionals who should be legally allowed to compete with members of the legal profession and to regulate themselves in the best interests of the public had not yet emerged.
[14] The background leading to the creation of a self-regulatory body governing the activities of immigration consultants in Canada and the making of the 2004 Regulations is largely uncontested and supported by the evidence filed, and by relevant case law: International Assn of Immigration Practitioners v Canada, 2004 FC 630 at paras 3-10; Law Society of Upper Canada v Canada (Citizenship and Immigration), 2008 FCA 243 at paras 4-35 (Law Society of Upper Canada); and Onuschak v Canadian Society of Immigration Consultants, 2009 FC 1135 at paras 11-19 (Onuschak).
[15] In October 2002, the Minister appointed a committee of experts to advise him on the regulation of immigration consultants (the Advisory Committee). Following their recommendations made in May 2003, the Minister accepted that a self-regulatory body be created since this required no legislative changes.
[16] Although there were already two existing associations, the Minister (or Cabinet) preferred the creation of a new body as the regulator of the immigration consultants. Apparently, the Association of Immigration Counsel of Canada (AICC) and the Organization of Professional Immigration Consultants (OPIC) had not been able to effectively enforce membership or high professional standards. Moreover, they both supported the creation of the CSIC as the new regulator.
[17] The Minister rejected the Advisory Committee’s recommendation that the new regulatory body be constituted by the Government and that it be composed of a board of directors composed of CIC representatives, immigration consultants, and members of the public. Instead, the regulatory body would simply be a non-share capital corporation under the Canada Corporations Act, RSC 1970, c C‑32, and the directors would be chosen by the members of the corporation. That said, financial support (by way of contribution agreements) and some external guidance would be provided by CIC in the setting up of the corporation during its early years of operation.
[18] Self-government of the new regulatory body had two essential aspects – the authority to licence and the ability to discipline. However, concerns were expressed that this may not cure the problem of “phantom” or “ghost” consultants. Because its jurisdiction only extended to members, this gray area of practice could not be effectively regulated by the newly created self‑regulated body. Be that as it may, CIC promised to “closely monitor the situation”, but over time, this proved to be insufficient as will be explained below.
[19] The Government was also cognisant that a subsequent board of directors of the newly created regulatory body could modify the code of conduct and by-laws so as to reduce their professional standards thereby impacting consumers’ protection. Indeed, the Government vowed to stakeholders that should the CSIC fail to fulfil its central task of protecting consumers and maintaining professional standards, the Government would take action to remove its recognition.
[20] In March 2005, one year after the applicant was designated as the regulator of immigration consultants, governmental authorities were supportive of the steps taken by the applicant: “Overall, CSIC has been operating with success and is meeting the Canadian government’s objective of protecting vulnerable people involved in the immigration process.”
[21] Over time, however, there was a gradual erosion of confidence from part of the applicant’s membership, the public and the Government, and this whether or not partisan views may have also been at work, as suggested by the applicant. Apparently, there were external pressures in 2010 to have Mr. John Ryan, appointed years before, removed as Chief Executive Officer of the applicant. There were also pressures for the removal of Mr. Imran Qayyum from the Board of directors of the applicant and the Canadian Migration Institute (CMI), a wholly owned subsidiary of CSIC.
[22] Be that as it may, as early as 2007, a Toronto Star investigation suggested that the regulatory scheme for immigration consultants continued to fail the public, and the Canadian Bar Association (CBA), unaware at that time of any disciplinary hearings against CSIC members, had expressed similar concerns to the Minister. Indeed, the CBA was encouraging “the government to conduct a broader assessment of whether CSIC is meeting its mandate for the regulation of consultants, particularly given the persistent allegations of fiscal mismanagement made by past directors of CSIC’s own Board”.
Standing Committee inquiry and recommendations
[23] In April 2008, responding to the complaints and discontent from the public and from within the profession regarding unacceptable practices by immigration consultants, the Parliamentary Standing Committee on Citizenship and Immigration (the Standing Committee) undertook to study the issues in the field and to recommend measures to properly regulate the profession. The Standing Committee did not conduct a formal investigation of the complaints made against the CSIC, whose representatives were nevertheless offered the opportunity to testify and comment on recommendations made afterwards. This was entirely within the prerogative of a Parliamentary Standing Committee.
[24] In June 2008, the Standing Committee issued its report, entitled “Regulating Immigration Consultants”. It notably recommended that the Government introduce stand-alone legislation to Parliament to re-establish the CSIC as a non-share capital corporation, to assist in re-establishing the new regulator, and to remain involved in its affairs until it is fully functioning. In its report, the Standing Committee noted that a number of immigration consultants were dissatisfied because CSIC’s membership fees were too high, it had failed to develop an industry plan, there was a lack of transparency and accountability, and compensation and spending were extravagant.
[25] While the Standing Committee did not make any specific finding of fact (to which the Minister’s representative admitted in this proceeding), it generally identified a number of shortcomings that should nevertheless be addressed by Parliament:
These grievances stem from various issues, and no doubt many arise because CSIC is a relatively new organization struggling to strike the right balance to regulate previously unregulated professionals. However, the Committee believes that problems at CSIC are attributable to more than just growing pains. Fundamentally, the Society is not being given the tools it needs to succeed as a regulator. As a federally-incorporated body, CSIC has no power to sanction immigration consultants who are not members of the Society, and it cannot seek judicial enforcement of the disciplinary consequences it imposes on those who are members. Further, because CSIC’s jurisdiction is not governed by statute, there is no possibility for dissatisfied members and others to influence the Society’s internal functioning though [sic] judicial review. In the view of the Committee, these shortcomings should be addressed by new legislation.
[26] The Standing Committee’s recommendation that the CSIC be “re-established” under stand-alone legislation was however not carried out by the Government, who would instead decide two years later to introduce Bill C-35 to Parliament as explained below.
Ministerial Response
[27] Before proposing to Parliament legislative amendments to the Act, different options were considered by CIC and the Minister.
[28] In 2009, Les Linklater, Director General of CIC Immigration Branch (now Assistant Deputy Minister, Strategic and Program Policy of CIC) retained a consulting group, Sussex Circle to, inter alia, conduct a review and provide “an analysis and assessment of the threshold required to conclusively determine when the level of governance in a not for profit organization has deteriorated to a point that the mandate of the board of directors could be revoked by the government with minimal legal risk”.
[29] Sussex Circle reviewed CSIC’s governance and accountability arrangements. They found same to be inadequate in important aspects and proposed a number of options ranging from doing nothing and winding up the CSIC, notably through an amendment to the IRPR that would name another body to replace CSIC (the regulatory option). Other options would be to amend the Act or the regulations in order to give the power to appoint “public interest directors” and compel the CSIC (or another designated body) to produce information as requested by the Minister for consideration and approval, or to set out prescriptive governance and accountability requirements in return for the retaining (or the granting) of monopoly in this area.
[30] The regulatory option had some attractive features (notably because it did not require legislative amendments), but it was apparently not the option favoured by Sussex Circle because of its high transitional costs. Sussex Circle thought that a minimally regulatory approach was highly dependent on the cooperation of the CSIC, while a more comprehensive and prescriptive approach could be a fall back position. However, in the long term, it would be far preferable to make just one set of legislative changes to deal with the governance and accountability issues identified in its report.
[31] The self-regulatory model chosen in 2004 did not prevent (and still does not prevent in 2011) immigration consultants in Canada and elsewhere from belonging to other professional associations. At the epoch CSIC became the regulator of immigration consultants, the Canadian Association of Professional Immigration Consultants (CAPIC) was created by the amalgamation of two aforementioned immigration industry organizations, the OPIC and the AICC, who had previously supported the establishment of the CSIC’s self-regulatory body.
[32] The CAPIC is a voluntary immigration practitioner association that, among other things, lobbies and advocates on issues concerning immigration practitioners. The relationship between the CAPIC and the CSIC have been the cause of much friction between the two organizations and have been particularly strained since 2007 when Mr. Philip Mooney became president of the CAPIC as explained in the affidavit of Keith Frank and judicially noted by the Court in Mooney v Canadian Society for Immigration Consultants, 2011 FC 496 (Mooney). The evidence on record clearly establishes that the CAPIC, notably Mr. Mooney himself, campaigned against the CSIC and actively advocated for its replacement.
[33] Apparently, CAPIC directors, although not registered lobbyists, met in 2008 and 2009 with Mr. Les Linklater – then Director General of CIC Immigration Branch – and other members of the Minister’s staff to lobby for the replacement of the CSIC or its Board of Directors. In this respect, these unnamed CAPIC directors allegedly acted in an “advisory capacity to the Minister in “offering alternatives” to the CSIC.
[34] Indeed, some immigration consultants heard in 2008 by the Standing Committee were directors of the CAPIC (or even “ghost consultants” as alleged by the applicant). Be that as it may, in Mooney, above, at para 113, this Court noted in 2011 that “[t]he Standing Committee Report and its principal recommendations are obviously a legitimate and thoughtful attempt to suggest ways in which CSIC could; and should, be reformed so that it might better fulfill its mandate and governing principles”.
Bill C-35
[35] On June 8, 2010, Bill C-35, referred to by the Government as the Cracking Down on Crooked Consultants Act, was introduced to the House of Commons by Immigration and Multiculturalism Minister Jason Kenney.
[36] In the news release and speaking notes of the Minister, one can read:
While most immigration consultants working in Canada are legitimate and ethical, it is clear that immigration fraud remains a widespread threat to the integrity of Canada’s immigration system, said Minister Kenney. The Cracking Down on Crooked Consultants Act will better protect prospective immigrants from crooked consultants and help safeguard our immigration system against fraud and abuse.
[…]
The proposed legislation implements unanimous recommendations of the House of Commons Standing Committee on Immigration which were arrived at following extensive consultations….
[37] In passing, the applicant contends that in a television interview on June 12, 2010, the Minister misstated the recommendations of the Parliamentary Standing Committee when declaring that “there have been a lot of concerns expressed, including the Parliamentary Standing Committee on immigration, unanimously said the government should set up a new regulatory body”. Also, when questioned about Bill C-35 in a CPAC interview, on June 8, 2010, the Minister’s answer implied his objective to have “it done by the end of 2011.”
[38] As will be explained below, the Court has found that the allegations of bias against the Minister are not determinative as far as the legality of the impugned enactments is concerned. The Court accepts the respondent’s submission that the Minister’s statements or comments have been taken out of context. In the CPAC interview, Minister Kenney was apparently referring to the coming into effect of Bill C-35 that he wished was done by the end of 2011, and not the designation of a new regulatory body.
[39] That said, despite the Minister’s statements, it is apparent that the Government chose not to follow the Standing Committee’s recommendation that “the Government of Canada introduce stand-alone legislation to re-establish the Canadian Society of Immigration Consultants as a non-share capital corporation” and that “[s]uch an “Immigration Consultants Society Act” should provide for the same types of matters covered by founding statutes of provincial law societies, including, but not limited to: functions of the corporation, member licensing and conduct, professional competence, prohibitions and offences, complaints resolution, compensation fund and by-laws”.
[40] In effect, once adopted by Parliament and proclaimed in force, Bill C-35 would significantly amend the manner of regulating third parties in immigration processes. Among other things Bill C-35:
• Creates a new offence by extending the prohibition against representing or advising persons for consideration – or offering to do so – to all stages in connection with a proceeding or application under the Act, including before a proceeding has been commenced or an application has been made, and provides for penalties in case of contravention;
• Exempts from the prohibition:
• Members of a provincial law society or notaries of the Chambre des notaires du Québec, and students-at-law acting under their supervision,
• Any other members of a provincial law society or the Chambre des notaires du Québec, including a paralegal,
• Members of a body designated by the Minister, and
• Entities, and persons acting on behalf of the entities, acting in accordance with an agreement or arrangement with Her Majesty in right of Canada;
• Extends the time for instituting certain proceedings by way of summary conviction from six months to 10 years;
• Gives the Minister the power to make transitional regulations in relation to the designation or revocation by the Minister of a body;
• Provides for oversight by the Minister of a designated body through regulations made by the Governor in Council requiring the body to provide information to allow the Minister to determine whether it governs its members in the public interest; and,
• Facilitates information sharing with regulatory bodies regarding the professional and ethical conduct of their members.
[41] On September 23, 2010, Bill C-35 received second reading at the House of Commons and was referred to the Standing Committee. The latter presented its report on November 24, 2010, with a concurrence on December 6, 2010. It received third reading on December 7, 2010.
[42] The same day, at the Senate level, Bill C-35 received first reading. It received second reading and was referred to the Standing Senate Committee on Social Affairs, Science and Technology on March 1, 2011. The latter presented its report (with observations) on March 10, 2011. Finally, it received third reading on March 21, 2011.
[43] Bill C-35 received Royal Assent on March 23, 2011.
Public selection process
[44] On June 8, 2010, concurrently with the tabling at the House of Commons of Bill C-35, the Minister announced that it was also taking immediate steps to address “a lack of public confidence in the regulation of immigration consultants” and that a Notice of intent would be published announcing CIC’s intention to “launch a transparent public selection process to identify a governing body for recognition as the regulator of immigration consultants, under current authority”.
[45] Explaining the decision to launch a public selection process, Minister Jason Kenney stated:
[…] According to the [House of Commons Standing Committee], complaints were heard from a number of consultants across the country, many of whom have expressed great dissatisfaction with the way that the Canadian Society of Immigration Consultants, or CSIC, is currently governed. That’s why I’m taking immediate steps to address this problem, a problem that poses a significant threat to the immigration system and has created a lack of public confidence in the regulation of consultants.
[…]
The Notice of intent will request comments from the public on the proposed selection process. A transparent selection process will then identify the body best able to effectively regulate consultants in support of Canada’s public confidence in the immigration system.
[…]
The regulatory body must regulate effectively and must be held accountable for ensuring their membership provides services in a professional and ethical manner and that real sanctions are taken if their members do otherwise.
[46] Effectively, on June 12, 2010, a Notice of intent was published in Part I of the Canada Gazette requesting comments from the public on its proposal to establish a public selection process with the objective of identifying a governing body for recognition as the regulator of immigration consultants. More particularly, such “a competitive public selection will be pursued in order to identify the entity best able to demonstrate capacity to effectively regulate immigration consultants. Selection factors will be established to ensure that the entity identified for recognition as the regulator of immigration consultants has the capacity to effectively regulate.”
[47] According to the applicant, prior to the launch of the public selection process, Mr. Linklater allegedly requested Mr. Mooney – who later became the President and CEO of the ICCRC – to provide a list of 19-20 individuals who could take over the CSIC in its regulatory functions. In this respect, the Court finds the evidence on record inconclusive and further notes that there is no credible evidence allowing the Court to conclude on a balance of probabilities that the public selection process was not fair and transparent.
[48] Further to the Notice of intent published on June 12, 2010, after considering comments received by the public, selection factors were developed “to ensure that any entity serving as the regulator of immigration consultants has or will have the capacity to support Canada’s immediate and long term immigration objectives as well as maintain public confidence in the immigration system”. As it appears from the Government Notice published in Part I of the Canada Gazette on August 28, 2010 (the Call for Submissions), five selection factors were identified by CIC – competence, integrity, accountability, viability and good governance – however, there could be “other relevant factors” that the Selection Committee or the Minister may want to consider.
[49] In the Call for Submissions, the Minister invited interested candidate entities to make submissions which “set out, in detail, how they respond to the selection factors”, but this “does not obligate the Minister, the Department of Citizenship and Immigration or the Government of Canada in any way, or to take any action”. That said, the Call for Submissions indicates that “[a]n agreement or arrangement may be entered into between the successful entity and the Government of Canada”. The deadline for submissions was December 29, 2010.
[50] To that effect, a Selection Committee (comprised of four external experts and three senior public servants) was charged with examining the submissions received in response to the Call for Submissions and making recommendations to the Minister after having considered the submissions in light of the selection factors and “other relevant factors”.
[51] In its final report dated September 24, 2010, Mr. John Scratch, an external consultant whose services were retained in spring 2010 by CIC, reiterated what he had already written in his interim report of July 2010, that the selection process of the regulator chosen by the Minister “must be open, transparent and competitive and must be seen to be so”. In her cross-examination, the Minister’s representative confirmed that the chosen selection process would have all those characteristics. Moreover, the report prepared by the external consultant “was a policy tool for the Minister to make a decision on who he was going to recommend”. It must be remembered that the selection process undertaken in the summer of 2010 was under the provisions of the Act, as they read at the time, and which conferred the authority to maintain or change the regulator of immigration consultants to the Governor in Council (Cabinet).
[52] Apart from the fact that the chosen organization must have, among other things, a code of conduct, a complaint and discipline mechanism, liability insurance, a compensation fund, bilingual services to members and the public, continuing education requirements and programs for members, Mr. Scratch notes that “[m]any of the problems identified with the current regulator are governance issues – democracy, accountability and transparency. Therefore, applicants should be required to demonstrate that they are capable of establishing an organization that will address these issues and that will provide for effective control of the Board of directors by the membership of the organization”.
[53] In its final report, Mr. Scratch also found it difficult to provide specific advice on an implementation plan because it was unclear – the selection process still not completed – what the issues would be until a decision had been made on a successful applicant and until there had been discussions with that applicant. Be that as it may, the following options were mentioned by the external consultant:
[…]
When the decision is made on the applicant CIC will need to begin negotiations with the applicant on the agreement to determine when the applicant can assume the duties of the regulator. If the current regulator is not selected CIC will also need to have discussions with CSIC to determine if they will act as regulator until the successful applicant is prepared to assume the duties. Ideally CIC should bring CSIC and the successful applicant together to arrange for an orderly transfer of authority.
CIC will also have to enter into negotiations with the body chosen as regulator for the agreement between the two parties. CIC should being preparing itself for these negotiations by determining what it wants in this agreement.
[…]
During any transitional period CIC may have to deal with the following issues in order to avoid disruption in the operations of the regulator:
• Will existing authorized immigration consultants continue to be authorized during the transitional period? Bill C-35 gives the Minister authority to provide for this by way of regulation. The transitional provision in section 6 of Bill C-35 also deals with this issue.
• Will members of CSIC in good standing automatically become members of the body chosen as the regulator? The new section 91(7) in Bill C-35 would appear to deal with this issue.
• Will there continue to be a Code of Conduct, liability insurance, a compensation fund and a complaints and disciplinary system during the transitional period? If there is who will pay for them? This is a particularly difficult issue which could arise if the current regulator is not the successful applicant. The negotiations with CSIC will have to try and resolve these issues. Legal Services will need to be consulted on this point.
• If the successful applicant is not the current regulator what will happen to cases in the complaints and disciplinary system? Again CIC will have to try and resolve this issue with CSIC and the successful applicant. Some sort of interim complaints and disciplinary system may need to be established.
• There may also be issues relating to the winding up of the current regulator during a transitional period. CIC needs to consult Legal Services on its authority to wind up the current regulator and its ability to preserve the liability insurance and the compensation fund currently in operation.
[54] Four submissions were considered in January 2011 by the Selection Committee, including proposals made by the applicant and the Institute of Chartered Canadian Immigration Practitioners (ICCIP). The bid of the ICCIP was actually prepared by the CAPIC (notably Phil Mooney, Lynn Gaudet, and Christopher Daw). The CAPIC had publicly announced that it was not interested in becoming the regulator itself, but would nevertheless lead a “Consortium of interested parties”. This strategic move – from the CAPIC, who is an activist interest group – is not surprising considering that in its final report of September 2010, the external consultant had already noted that “[t]he Regulator should be limited to a regulatory function and should not act as a representative organization for immigration consultants”.
[55] In their report delivered to the Minister’s attention on January 27, 2011, the Selection Committee came to the conclusion that the ICCIP and the applicant both met the previously announced selection factors (integrity, competence, good governance, accountability and viability). However, the applicant had missed the opportunity to demonstrate how it would address areas of concern that were expressed by the Standing Committee in their report of June 2008 to the House of Commons. On the other hand, the ICCIP had made a concerted effort to demonstrate how it would fully address these areas of concern.
[56] The Minister accepted the recommendation of the Selection Committee that the ICCIP, later incorporated under the name of the ICCPC (on February 18, 2011), be designated as the new regulator of immigration consultants. On March 14, 2011, CIC entered into a Non-Disclosure Agreement with the ICCRC with respect to the possibility of the proposed regulations being enacted. On March 16, 2011, a further Contribution Agreement was concluded with the ICCRC.
[57] On March 18, 2011, the Minister issued a news release announcing the publication of a Notice proposing to amend the 2004 Regulations so that the applicant would be replaced by the ICCRC who would then be recognized as the regulator of immigration consultants. The following day, on March 19, 2011, the proposed regulatory text amending the definition of “authorized representative” (section 2 of IRPR) was published in Part I of the Canada Gazette. Moreover, a transitional provision (subsection 13.1(2) of the IRPR) would permit persons who are members in good standing of the CSIC to be able to continue to act as authorized representatives for a period of 120 days following the coming into force of the proposed regulations. Same will come into force on the day on which they are registered.
[58] In the Regulatory Impact Analysis Statement (the March RIAS), it is explained that the intent of the proposed amendments “is to better protect applicants to immigration processes and enhance public confidence in the immigration system by recognizing a regulator of immigration consultants that has demonstrated that it meets the necessary organizational competencies to effectively regulate immigration consultants”. Interested persons were invited to make comments concerning the proposals within 30 days after the date of publication of the Notice in Part I of the Canada Gazette.
[59] On March 23, 2011, a few days before the dissolution of the Houses, Bill C-35 received Royal Assent, now providing specific authority to the Minister himself to revoke or designate the regulatory body for immigration consultants (new section 91 of the Act), but still, to have force of law, an order of the Governor in Council had to be made. However, no such order was made during spring 2011 (the writs for the 41st Canadian general election to be held on May 2, 2011 were issued by the Governor General on March 26, 2011).
III. PRESENT LITIGATION
[60] On April 4, 2011, the applicant commenced an application for leave and judicial review seeking an order of certiorari to set aside any purported action to revoke the applicant’s designation, together with interlocutory relief to maintain the status quo until final determination by the Court (Docket IMM-2244-11).
Stay motion
[61] Along with the serving and filing of its application for leave and judicial review, the applicant sought an order of the Court to stay the decision of the Minister to revoke the CSIC’s designation as the regulator of immigration consultants.
[62] As of April 12, 2011, the applicant counted around 1,910 full members. Moreover, 137 students had completed the requisite immigration practitioner program and had applied to become full members. In practice, some 38 employees were fulfilling the regulatory tasks delegated to the applicant. The applicant was currently handling over 99 complaints and 155 open investigations from the public regarding immigration consultants. There were currently 21 on-going disciplinary proceedings.
[63] The stay motion was heard on June 7, 2011 and refused by Madam Justice Snider of this Court (the Motions Judge) on June 9, 2011. Essentially, she found that the applicant’s allegation of irreparable harm was “speculative”, noting inter alia that “[t]here is no timeline for the enactment [of the proposed regulatory amendments] of which anyone is aware (other than perhaps the Minister and the GIC)” (Canadian Society of Immigration Consultants v Canada (Minister of Citizenship and Immigration), 2011 FC 669 at para 28).
[64] The Motions Judge apparently accepted the following statement made by Mrs. Mary Coulter, the Minister’s representative in her affidavit, dated May 20, 2011:
Any decision to enact regulations and to change the regulator of immigration consultants must be made at the executive level, either by the Minister (pursuant to the coming into force of Bill C-35) or by the Governor-in-Council under the present legislative scheme. It cannot be determined at this point when, or even if, such enactments will be made. [My emphasis]
[65] Undisclosed to the Motions Judge and only discovered subsequently in the present proceeding, the process of revoking the applicant’s designation and designating the ICCRC as the new regulator was well underway:
(a) By May 19, 2011, the 2011 Regulations had been drafted;
(b) By May 25, 2011, the GIC Order had been drafted; and,
(c) By May 31, 2011, the Minister had signed the recommendation to the Governor in Council (GIC) to repeal the applicant’s recognition as the regulator and to have Bill C-35 come into force on June 30, 2011.
[66] Indeed, days after the dismissal of the stay motion, the Government moved rapidly and the impugned enactments were made and registered so that they could become law on the coming into force of Bill C-35 on June 30, 2011.
[67] The Court pauses to mention that during the course of argument on the merit of the present judicial review application, applicant’s counsel stressed that the conduct of the Minister or its representatives in the stay motion was evidence of bad faith on the part of the Minister or its representatives who omitted to disclose key information in the respondent’s evidence (the affidavit of Mrs. Coulter dated May 20, 2011)