A letter from the immigration minister states that paralegals have the right to practise immigration
Tony Caruso, a litigation paralegal, has slammed the Law Society of Ontario for failing to uphold its by-laws that allow the profession to provide the full range of immigration services to Ontarians. Caruso says the LSO still seeks to “maintain their grip” and limit paralegals, contrary to s. 91 of the Immigration and Refugee Protection Act (IRPA), which outlines their scope of practice.
Section 91 of the IRPA authorizes any member in good standing of a law society, including a paralegal, to represent or advise a person with an expression of interest submission under subs. 10.1(3) or an IRPA.5 proceeding or application.
Caruso asserts that the rule of law permits an unrestricted scope which the regulator must respect. “How much longer will we as a profession and the public tolerate having access to justice restricted, contrary to the rule of law, for the sake of lawyers’ bulging pocketbooks?” Caruso asks.
Law Times previously reported that Caruso and two other paralegals had filed a claim with the Superior Court alleging the LSO is incorrectly restricting paralegals from practising the full scope of immigration law unless they become regulated immigration consultants. In addition, some paralegals recently attempted to bring a motion to the LSO 2022 annual general meeting demanding that the Ontario government regulate the profession instead of the LSO.
Caruso says the LSO’s position that by-law 4 of the Law Society Act limits the scope of a paralegal’s practice is false. “They’ve been lying to the public for the last 10 years, if not longer. By-law 4 s.6(D) clearly states that we get our scope of practice from the Ontario legislator or act of parliament.”
According to the Law Society Act, By-law 4 s.6(D) acknowledges proceeding or intended proceeding before a tribunal established under an Act of the Ontario Legislature or an Act of Parliament.
The LSO has stated that the regulatory body and the Immigration Consultants of Canada Regulatory Council (ICCRC) share regulatory authority over paralegals providing immigration and refugee legal services. Jennifer Wing, a spokesperson for the LSO, previously informed Law Times that paralegals servicing clients before the Immigration and Refugee Board of Canada are under the LSO’s purview, while “other services” are supervised by the ICCRC.
On Dec. 17, 2021, the Canadian Bar Association requested that the Canadian government amend s.91 of the Immigration and Refugee Protection Act (IRPA) to remove paralegals from the categories of persons who may represent or advise a person in connection with an expression of interest submission under subs. 10.1(3) or a proceeding or application under the IRPA.
On Jan. 24, 2022, the former LSO treasurer Teresa Donnelly wrote to Minister of Immigration, Refugees and Citizenship Sean Fraser advising against the CBA’s request stating that licensed paralegals who represent and advise parties before the Immigration Refugee Board (IRB) would be required to stop providing immigration services or seek accreditation with the College of Immigration and Citizenship Consultants.
“A legitimate option for representation at the IRB would be eliminated, thereby limiting access to justice for those appearing before the IRB, many of whom are extremely vulnerable individuals and belong to marginalized groups,” the letter stated.
The letter noted that s. 91 is an explicit, concise provision that leaves no room for interpretation and permits licensed paralegals to provide a broad scope of services. However, Donnelly wrote that the LSO’s by-law limits the scope to advising and representing parties in proceedings before the IRB.
“If paralegals want to provide services set out in s. 91 beyond what is permitted by-law 4, they are required to be licensed by the College of Immigration and Citizenship Consultants.”
Minister Fraser’s response to Donnelly wrote that the IRPA states that members in good standing with their law society, including paralegals, are authorized to provide immigration advice and representation. He noted that Immigration, Refugees and Citizenship Canada has no plans to amend s. 91 of the IRPA.
“I’m very thankful that Minister Sean Fraser responded to Teresa Donnelly’s letter, and he clearly pointed out that paralegals have the right to give advice and representation. Nowhere does he mention the word IRB because he knows that we are allowed to practise the full scope of practice,” Caruso says.
He says the by-laws allow paralegals to practice the full scope of immigration and is not restrictive. “I’ve asked the LSO a number of times to show me where in by-law 4 that says we can’t practice, and they can’t. There’s nothing wrong with by-law four, and a lot of people are getting confused that it limits our scope, but by-law 4 is what gives us our scope.”
Paralegals can practise the full scope of immigration, and Caruso says it is “word of mouth” restricting the scope of practice, not a written rule. He says the lawsuit against the LSO limiting paralegals’ from providing complete immigration services does not need to go forward anymore because of the intervention from the immigration minister.
“The letter points out that we have the right to practice immigration. So, I’m practising. The law society can’t stop me because they’re outside their jurisdiction.”
Caruso says he has demanded that the LSO prosecute him for providing immigration services. However, the regulator has refused and closed all immigration-related investigations against him. “If I’m doing a disservice to the public, it’s their duty to prosecute me, and the law society is not prosecuting me.”
Caruso said the Supreme Court has repeatedly noted that “according to the doctrine of federal paramountcy, when valid provincial and federal legislation are incompatible, the federal law prevails, and the provincial law is declared inoperative to the extent of the conflict. The purpose of the federal paramountcy doctrine is to ensure that federal legislative intent will prevail when it conflicts with valid provincial laws.”
He said that the Supreme Court of Canada ruled in LSBC v Mangat in 2001 that law societies cannot restrict or interfere with the provision of immigration services and that the IRPA implemented the decision.
Because the professions are different, Caruso has further sought to be investigated only by paralegals, not lawyers. “I want to be investigated by my peers because lawyers have biases and will be biased towards paralegals. So, they need to start hiring paralegal investigators.”
