IMM‑63‑05
2006 FC 1489
The Law Society of Upper Canada (Applicant)
v.
The Minister of Citizenship and Immigration and Canadian Society of Immigration Consultants and Attorney General of Canada (Respondents)
and
The Federation of Law Societies of Canada (Intervener)
Indexed as: Law Society of Upper Canada v. Canada (Minister of Citizenship and Immigration) (F.C.)
Federal Court, Hughes J.—Toronto, December 4 and 6; Calgary, December 13, 2006.
Constitutional Law — Fundamental Principles — Application for declaration Regulations Amending the Immigration and Refugee Protection Regulations (Regulations) ultra vires — (1) Regulations not contrary to rule of law — Actions of legislative branch of government constrained by rule of law only to extent must comply with legislative requirements as to manner, form — (2) Regulations not creating delegation not statutorily authorized — Validity of delegated legislation assessed by determining whether Regulations consistent with powers given by statute; whether conforming to purposes thereof — (3) Parliament having broad power to delegate by way of regulation subject to scope, purpose of enabling legislation — Creation of Canadian Society of Immigration Consultants not unauthorized — Application dismissed.
Citizenship and Immigration — Regulations Amending the Immigration and Refugee Protection Regulations (Regulations) intra vires — Under Immigration and Refugee Protection Act (IRPA), ss. 5(1), 91, Governor in Council may make regulations governing who may, may not represent, advise, consult with person who is subject of proceeding, application before Minister, officer, Board — Regulations providing that, subject to certain “grandfathering”, only specific persons (lawyers, notaries, students‑at‑law, members of Canadian Society of Immigration Consultants (CSIC)) may carry out duties specified therein — (1) Limited intervention of government in affairs of CSIC not inappropriate, excessive, unwarranted — Despite government’s start‑up loan to CSIC, organization no less independent from state — (2) Federal government having power to choose persons who may represent others for IRPA purposes — Exclusion of group of persons such as lawyers’ assistants not discriminatory.
This was an application for a declaration that the Regulations Amending the Immigration and Refugee Protection Regulations (Regulations) are ultra vires on a number of grounds. Under subsection 5(1) and section 91 of the Immigration and Refugee Protection Act (IRPA), the Governor in Council may make regulations including those governing who may or may not represent, advise or consult with a person who is the subject of a proceeding or application before the Minister, an officer or the Board. The Regulations provide that, subject to certain “grandfathering”, only specific persons (lawyers, notaries, students‑at‑law, etc.) may carry out the duties specified above. The issue was whether the Regulations are ultra vires because they (1) are contrary to the rule of law; (2) create a delegation that is not statutorily authorized; (3) contain discriminatory provisions; and (4) exceed the scope of the regulation‑making power conferred upon the Governor in Council in the Act.
Held, the application should be dismissed.
(1) The Regulations are not contrary to the rule of law. Actions of the legislative branch of government are constrained by the rule of law but only in that they must comply with legislative requirements as to manner and form (i.e. the procedures by which legislation is to be enacted, amended and repealed). In Law Society of British Columbia v. Mangat, the Supreme Court established that the federal government may provide for representation in respect of IRPA matters by persons who are not lawyers. The degree of participation by the government in lending money for the institution of CSIC and the limited intervention of the government in the affairs of that organization is not inappropriate, excessive or unwarranted and does not make CSIC members any less independent from the state.
(2) The Regulations do not create a delegation that is not statutorily authorized. In assessing the validity of Regulations, the correct approach is to determine whether the Regulations are consistent with the powers given by the statute and whether they conform to the purposes thereof. Reading section 91 of the IRPA in its entirety, the purpose and scope of permitted delegated legislation is to govern who may and may not represent, advise or consult. The Regulations therefore conform to the statute since they state who may represent persons in dealing with the IRPA and before the Board. The naming of one group of such persons as being members of the Canadian Society of Immigration Consultants (CSIC) is no different than the naming of another group. That CSIC is a brand new organization whose by‑laws and rules were not yet in place when the Regulations took effect does not make the Regulations invalid. Finally, it was clearly established in Mangat that the federal government could designate non‑lawyers to the task of representation.
(3) The Regulations are also not discriminatory. The Regulations, by implication, exclude employees of lawyers, such as paralegals, from representing persons in IRPA matters and before the Board although they have historically done so. In order to carry out those tasks, those persons would have to become members of CSIC and therefore be subject to discipline by CSIC. As members of CSIC, if disciplinary proceedings were to be instituted against those individuals, they could not defend themselves properly by providing CSIC with their client’s files since they would be subject to solicitor‑client privilege, which can only be waived by the client. Because the federal government has the power to choose persons who can represent others for IRPA purposes, excluding a group of persons is not in itself discriminatory. To the extent that solicitor‑client privilege could cause an issue in respect of disciplinary proceedings, CSIC and the law societies can negotiate suitable arrangements such as the transfer for disciplinary hearings respecting lawyers’ employees to the appropriate law society. It has been held that the non‑legal body should defer to the appropriate legal body (law societies) or time its proceedings in such a way as to preserve substantive rights.
(4) The Regulations do not exceed the powers conferred by the statute. Since the statute says that the Regulations may govern who may or may not represent, advise or consult in respect of IRPA matters, the Regulations are consistent with the statute’s purpose in defining that lawyers, notaries, students‑at‑law and CSIC members are persons who may represent, advise or consult. Parliament has broad power to delegate by way of regulation subject to the scope and purpose of the enabling legislation. With respect to the institution of CSIC, the determination of whether a statute is needed for the creation of a self‑governing body is a matter for Parliament or the provincial legislatures. Therefore, the Regulations are intra vires.
statutes and regulations judicially
considered
Act of Settlement (The), 1700 (U.K.), 12 & 13 Will. III, c. 2.
Canada Corporations Act, R.S.C. 1970, c. C‑32, Part II.
Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3(2)(e), 5(1), 91.
Immigration and Refugee Protection Regulations, SOR/2002‑227, ss. 2 “authorized representative” (as am. by SOR/2004‑59, s. 1), 13.1 (as enacted idem, s. 3).
Regulations Amending the Immigration and Refugee Protection Regulations, SOR/2004‑59.
War Measures Act, R.S.C. 1927, c. 206.
cases judicially considered
applied:
Law Society of British Columbia v. Mangat, [2001] 3 S.C.R. 113; (2001), 205 D.L.R. (4th) 577; [2002] 2 W.W.R. 201; 96 B.C.L.R. (3d) 1; 157 B.C.A.C. 161; 16 Imm. L.R. (3d) 1; 276 N.R. 339; 2001 SCC 67; Jafari v. Canada (Minister of Employment and Immigration), [1995] 2 F.C. 595; (1995), 125 D.L.R. (4th) 141; 30 Imm. L.R. (2d) 139; 180 N.R. 330 (C.A.); Re Peralta et al. and The Queen in right of Ontario et al. (1985), 49 O.R. (2d) 705; 16 D.L.R. (4th) 259; 7 O.A.C. 283 (C.A.); affd sub nom. Peralta v. Ontario, [1988] 2 S.C.R. 1045; (1988), 66 O.R. (2d) 543; 56 D.L.R. (4th) 575; 89 N.R. 323; 31 O.A.C. 319; Dene Nation (The) v. The Queen, [1984] 2 F.C. 942; (1984), 6 Admin. L.R. 268; 13 C.E.L.R. 139 (T.D.); Wilder v. Ontario Securities Commission (2001), 53 O.R. (3d) 519; 197 D.L.R. (4th) 193; 142 O.A.C. 300 (C.A.).
considered:
Attorney General of Canada et al. v. Law Society of British Columbia et al., [1982] 2 S.C.R. 307; (1982), 137 D.L.R. (3d) 1; [1982] 5 W.W.R. 289; 37 B.C.L.R. 145; 19 B.L.R. 234; 66 C.P.R. (2d) 1; 43 N.R. 451; British Columbia v. Imperial Tobacco Canada Ltd., [2005] 2 S.C.R. 473; (2005), 257 D.L.R. (4th) 193; [2006] 1 W.W.R. 201; 45 B.C.L.R. (4th) 1; 218 B.C.A.C. 1; 339 N.R. 129; 2005 SCC 49; Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869; (1991), 84 D.L.R. (4th) 105; [1991] 6 W.W.R. 289; 75 Man. R. (2d) 81; 2 Admin. L.R. (2d) 185; 6 C.R.R. (2d) 259; 130 N.R. 121.
referred to:
Reference as to the Validity of the Regulations in relation to Chemicals, [1943] S.C.R. 1; [1943] 1 D.L.R. 248; (1943), 79 C.C.C. 1; Hodge v. Reg. (1883), 9 App. Cas. 117 (P.C.); Gray (In re) (1918), 57 S.C.R. 150; Attorney‑General of Canada et al. v. Nolan and Hallett & Carey Ltd., [1952] 3 D.L.R. 433; (1952), 6 W.W.R. (N.S.) 23 (J.C.P.C.).
authors cited
Côté, Pierre‑André. Interpretation of Legislation in Canada, 3rd ed. Scarborough, Ont.: Carswell, 2000.
Hogg, Peter W. Constitutional Law of Canada, 4th ed. (loose‑leaf). Toronto: Carswell, 1977.
Ontario. Professional Organizations Committee. The Report of the Professional Organizations Committee. Toronto: Ministry of the Attorney General, 1980.
APPLICATION for a declaration that the Regulations Amending the Immigration and Refugee Protection Regulations are ultra vires on a number of grounds and in particular given the implied exclusion found in the definition of “authorized representative” in section 2 thereof. Application dismissed.
appearances:
Bryan Finlay, Q.C., Marie‑Andrée Vermette and Caroline Abela for applicant.
Marianne Zoric, Catherine C. Vasilaros and Matina Karvellas for respondents Attorney General of Canada and Minister of Citizenship and Immigration.
John E. Callaghan and Benjamin Na for respondent Canadian Society of Immigration Consultants.
Chris G. Paliare and Andrew K. Lokan for intervener The Federation of Law Societies of Canada.
solicitors of record:
WeirFoulds LLP, Toronto, for applicant.
Deputy Attorney General of Canada for respondents Attorney General of Canada and Minister of Citizenship and Immigration.
Gowling Lafleur Henderson LLP, Toronto, for respondent Canadian Society of Immigration Consultants.
Paliare Roland Rosenberg Rothstein LLP, Toronto, for intervener The Federation of Law Societies of Canada.
The following are the reasons for judgment and judgment rendered in English by
[1]Hughes J.: The applicant, the Law Society of Upper Canada, seeks a declaration that the Regulations Amending the Immigration and Refugee Protection Regulations, SOR/2004‑59 are ultra vires. For the reasons that follow, I find that the Regulations are valid and intra vires.
[2]The Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27 provides in paragraph 3(2)(e) that one of the objectives of that Act is to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee system, while upholding Canada’s respect for the human rights and fundamental freedoms of all human beings. IRPA provides that the Governor in Council may make regulations including, as provided in subsection 5(1) and section 91:
5. (1) Except as otherwise provided, the Governor in Council may make any regulation that is referred to in this Act or that prescribes any matter whose prescription is referred to in this Act.
. . .
91. The regulations may govern who may or may not represent, advise or consult with a person who is the subject of a proceeding or application before the Minister, an officer or the Board.
[3]Shortly after IRPA was enacted, an external Advisory Committee was established by the Minister of Citizenship and Immigration to identify concerns and prepare recommendations as to those persons who, for a fee, could represent other persons in respect of matters arising out of IRPA including appearing on behalf of such other persons before the Immigration and Refugee Board. After consultations, receipt of submission reports and appropriate publication, none of which is contested, the Regulations [Immigration and Refugee Prorection Regulations, SOR/2002-227, ss. 2 (as am. by SOR/ 2004-59, s. 1), 13.1 (as enacted idem, s. 3)] now in issue were made. They state:
Interpretation
2. The definitions in this section apply in these Regulations
. . .
“authorized representative” means a member in good standing of a bar of a province, the Chambre des notaires du Québec or the Canadian Society of Immigration Consultants incorporated under Part II of the Canada Corporations Act on October 8, 2003.
. . .
representation for a fee
13.1 (1) Subject to subsection (2), no person who is not an authorized representative may, for a fee, represent, advise or consult with a person who is the subject of a proceeding or application before the Minister, an officer or the Board.
(2) A person who is not an authorized representative may, for a period of four years after the coming into force of this section, continue for a fee to represent, advise or consult with a person who is the subject of a proceeding or application before the Minister, an officer or the Board, if
(a) the person was providing any of those services to the person who is the subject of the proceeding or application on the coming into force of this section; and
(b) the proceeding or application is the same proceeding or application that was before the Minister, an officer or the Board on the coming into force of this section.
(3) A student‑at‑law shall not be deemed under subsection (1) to be representing, advising or consulting for a fee if the student‑at‑law is acting under the supervision of a member in good standing of a bar of a province or the Chambre des notaires du Québec who represents, advises or consults with the person who is the subject of the proceeding or application.
[4]In brief, the Regulations at issue provide that, subject to certain “grandfathering”, only the following persons may, for a fee, represent, advise or consult with a person who is the subject of an IRPA proceeding, before the Minister, an officer or the Board:
· A lawyer in good standing as a member of a provincial bar;
· A notary who is a member of the Chambre des notaires du Quebec;
· A student‑at‑law supervised by such a lawyer or notary; and
· A member in good standing of the Canadian Society of Immigration Consultants (CSIC) incorporated under Part II of the Canada Corporations Act [R.S.C. 1970, c. C-32] on October 8, 2003.
[5]The applicant, Law Society, supported by the intervener, the Federation of Law Societies of Canada, submits that these Regulations are ultra vires on one or more of the following grounds:
(1) they are contrary to the rule of law;
(2) they create a delegation that is not statutorily authorized;
(3) they contain discriminatory provisions; and
(4) they exceed the scope of the regulation‑making power conferred upon the Governor in Council in the Act.
[6]The intervener Federation raised an issue that could be said to be a subset of the issues of the Law Society, particularly issue (3). The Federation argues that lawyers’ assistants such as paralegals have historically appeared before the Board and acted for persons affected by IRPA. These persons will not be able to continue to do so unless they become members of CSIC. As members of CSIC, if such persons were to be the subject of disciplinary proceedings, they could not, in their defence, provide CSIC with their client’s files as they would be subject to solicitor‑client privilege which only the client could waive. Thus the paralegal would be unable to mount a proper defence if the client did not waive privilege. This, the Federation argues, would be discriminatory.
[7]The respondents, the Minister of Citizenship and Immigration, the Attorney General of Canada and the Canadian Society of Immigration Consultants (CSIC) support the validity of the Regulations. They remind the Court that Regulations are presumed to be valid and that they are deemed to be intra vires and coherent with the enabling statute (Coté, Pierre-André The Interpretation of Legislation in Canada (3rd ed.) Scarborough, Ont. : Carswell, 2000, at pages 369‑372). The onus rests upon the applicant to demonstrate otherwise.
[8]All parties before this Court are in agreement that there have been problems experienced by potential immigrants and refugees who seek to avail themselves of the provisions of IRPA and have at times been exploited by others who are not lawyers but call themselves immigration consultants or use similar terms. Such consultants, for a fee, have dealt with those persons administering IRPA and appeared before the Board on behalf of potential immigrants and refugees. The representation afforded by such consultants has, on a number of occasions, been questionable to such an extent that a clear need was perceived by a large number of persons in government and in the private sector for reform and regulation.
[9]The Supreme Court of Canada in Law Society of British Columbia v. Mangat, [2001] 3 S.C.R. 113 (Mangat), considered the question as to whether the regulation of such persons was within the jurisdiction of the provinces or the federal government. That Court decided that the federal government had the power to establish tribunals respecting aliens and naturalization and to govern who appeared before these tribunals. At paragraph 34 of its unanimous decision the Court said:
Flowing from this jurisdiction over aliens and naturali-zation is the authority to establish a tribunal to determine immigration rights in individual cases as part of the administration of these rights. Also 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 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. In order to make such decisions while ensuring compliance with the requirements of natural justice and the Canadian Charter of Rights and Freedoms, the federal government must be free to determine the nature and content of, and participants in, a fair procedure for making such determinations.
That Court also determined at paragraphs 59 through 67 that the federal government could deal with/ascertain the representation of others, for a fee, to be undertaken by persons other than lawyers. It said at the conclusion of paragraph 58:
Representation by non‑lawyers is consistent with the purpose of such administrative bodies, which is to facilitate access to and decrease the formality of these bodies as well as to acknowledge the expertise of other classes of people.
[10]The applicant and the intervener both agree, based on Mangat, that the federal government can provide for a scheme whereby persons other than lawyers, can for a fee, represent others in dealing with IRPA and appearing before the Board. The real issue that they raise is whether it was done correctly in the circumstances now before the Court.
[11]I will turn to the several grounds as to validity raised by the applicant and intervener.
1. Are the Regulations contrary to the rule of law
[12]The applicant argues that judicial independence, tracing its origins at least as far back as The Act of Settlement, 1700 [(U.K.), 12 & 13 Will. III, c. 2] is a cornerstone of the adjudicative process and the judicial branch of government. Associated with that is the fundamental principle of the independence of the bar. As stated by the Supreme Court of Canada in Attorney General of Canada et al. v. Law Society of British Columbia et al., [1982] 2 S.C.R. 307, at pages 335-336:
The independence of the Bar from the state in all its pervasive manifestations is one of the hallmarks of a free society. Consequently, regulation of these members of the law profession by the state must, so far as by human ingenuity it can be so designed, be free from state interference, in the political sense, with the delivery of services to the individual citizens in the state, particularly in fields of public and criminal law. The public interest in a free society knows no area more sensitive than the independence, impartiality and availability to the general public of the members of the Bar and through those members, legal advice and services generally.
[13]CSIC members, the applicant argues, are not independent from the state. The applicant points out that the evidence shows that the government has provided a start‑up loan to CSIC which provides for significant monitoring of CSIC affairs by the government. The applicant draws attention to evidence showing active participation by the government in the affairs of CSIC as a result of the provisions of the loan agreement and at the Board of Directors level.
[14]The respondents argue that the rule of law, as explained by the Supreme Court of Canada in British Columbia v. Imperial Tobacco Canada Ltd., [2005] 2 S.C.R. 473, at paragraphs 57 through 68, is not something that advocates should read into anything simply because it may support their particular view of what the law should be. As stated at paragraph 60 of those reasons, actions of the legislative branch of government are constrained by the rule of law, but only in the sense that they must simply comply with legislative requirements as to manner and form, that is, the procedures by which legislation is to be enacted, amended and repealed.
[15]The respondents’ position is correct. The Supreme Court of Canada, in Mangat, has already determined that the federal government may provide for representation in respect of IRPA matters, by persons who are not lawyers. Treasury Board has created a policy under its Results‑based Management Accounta-bility Framework (RMAF) and the Regulatory Impact Analysis Statement (RIAS) to guide administrators and ensure accountability during the execution of govern-ment programs and funding initiatives.
[16]The degree of participation by the government in lending money for the institution of CSIC and the limited intervention of the government in the affairs of that organization is not inappropriate and in no way has been shown to be excessive or unwarranted. The role of government in the affairs of CSIC is that of nurturing a new organization so that it may serve persons in need of its services in an appropriate and independent manner.
[17]The rule of law cannot be used in the present circumstances to set aside the Regulations at issue.
2. Do the Regulations create a delegation that is not statutorily authorized?
[18]The Regulations, in addition to providing that lawyers, notaries and students‑at‑law may represent persons, provides that members of CSIC, a corporation incorporated under Part II of the Canada Corporations Act, may do so. At the time that the Regulations took effect CSIC, was incorporated but did not have a complete set of rules, procedures and by‑laws.
[19]The applicants argue that CSIC was barely functioning when the Regulations took effect. It is their contention that there is no structure set out in the Regulations as to how CSIC is to be administered, how its members are selected, educated or disciplined. CSIC, in effect, has been given an unfettered discretion over its membership. Thus CSIC has, in effect, been given an improper delegation as to who may represent persons as to IRPA matters and appear before the Board.
[20]The applicants submit the use of the word “govern” in section 91 does not confer broad authority to the Governor in Council and it is indicative of Parliament’s intent that the Regulations ought to prescribe rules or standards. They acknowledge that there have been instances where the government has, by statute, given broad regulation-making powers to the Governor in Council but such instances are those of national emergency such as under the War Measures Act [R.S.C. 1927, c. 206], see e.g. Reference as to the Validity of the Regulations in relation to Chemicals, [1943] S.C.R. 1.
[21]The respondents say that the correct approach to regulations such as this is to determine first whether the regulations are consistent with the powers given by the statute, and then to determine if the regulations conform to the purposes of the statute. They cite the Federal Court of Appeal at page 602 of their reasons in Jafari v.Canada (Minister of Employment and Immigration), [1995] 2 F.C. 595 (C.A.) as instructive:
It goes without saying that it is not for a court to determine the wisdom of delegated legislation or to assess its validity on the basis of the court’s policy preferences. The essential question for the court always is: does the statutory grant of authority permit this particular delegated legislation? In looking at the statutory source of authority one must seek all possible indicia as to the purpose and scope of permitted delegated legislation. Any limitations, express or implied, on the exercise of that power must be taken into account. One must then look to the regulation itself to see whether it conforms and where it is argued that the regulation was not made for the purposes authorized by the statute one must try to identify one or more of those purposes for which the regulation was adopted. It is accepted that a broad discretionary power, including a regulation‑making power may not be used for a completely irrelevant purpose but it is up to the party attacking the regulation to demonstrate what that illicit purpose might be. [Footnotes omitted.]
[22]Section 91 of IRPA states that “regulations may govern who may or may not represent, advise or consult with a person who is the subject of a proceeding or application before the Minister, an officer or the Board.” In reading section 91 in its entirety, the purpose is to govern who may and may not represent, advise or consult. Taking this approach, it can be seen that the Regulations conform to the statute, they state who may represent persons in dealing with IRPA and before the Board. The naming of one group of such persons as being members of CSIC is no different than the naming of another group. It is readily understood that CSIC is a brand new organization with no history behind it while the law societies have too much history and venerability. This, however, does not make such Regulations invalid.
[23]This situation is closely similar to that of Re Peralta et al. and The Queen in right of Ontario et al. (1985), 49 O.R. (2d) 705, a decision of the Ontario Court of Appeal affirmed by the Supreme Court of Canada in brief reasons dealing with another point at [1988] 2 S.C.R. 1045. At page 717 of the reasons of the Ontario Court of Appeal delivered by MacKinnon, A.C.J.O. states that “[t]here is no rule or presumption for or against subdelegation”; the language of the statute must be interpreted in light of what the statute is intended to achieve; the maxim delegatus non potest delegare is not a rule of law but a rule of construction and in respect of construction consideration must be given to the language of the whole of the enactment, its purposes and objects.
[24]Further, as stated by Reed J. of this Court in summarizing a number of Supreme Court of Canada decisions in Dene Nation (The) v. The Queen, [1984] 2 F.C. 942 (T.D.), at page 948, a delegate legislator may subdelegate to another body administrative power if necessary to do so in order to implement the scheme or standards established.
[25]While in some cases the enabling statute or regulations will have to set out schemes and standards, it is not essential to do so when, as in the case here, the statute simply requires a designation as to who may represent persons in respect of IRPA and before the Board. It is conceded by all parties that there was nothing improper in naming lawyers, notaries and students‑at‑law as being such persons. Equally, there can be nothing improper in naming members of an organization such as CSIC which was in place at the time the Regulations were enacted, as being equally so designated, even if all CSIC’s by‑laws and rules were not yet in place. Being new does not make it improper. The Supreme Court of Canada in Mangat clearly stated that the federal government could designate non‑lawyers to the task. In ensuring that CSIC was established and having a continuing interest in its early development, the government was assured as to the proper designation under the Regulations.
3. Are the Regulations discriminatory?
[26] The Regulations authorize lawyers, notaries, students‑at‑law and members of CSIC to represent persons in IRPA matters and before the Board. The Regulations, by specifying which persons may do such acts, have by implication stated that all others may not. One excluded group therefore are employees of lawyers such as paralegals, who are not themselves lawyers. Previously, such persons have appeared before the Board and acted for persons in respect of IRPA matters.
[27]The evidence shows that the law societies strenuously urged, before the Regulations were enacted, that lawyers’ employees be allowed to represent others in IRPA matters before the Board. They argued that such persons were supervised by lawyers who in turn were subject to discipline by their respective law societies. They argued that if such employees were excluded, they would have to become members of CSIC in order to carry on their activities and thus be subject to discipline by CSIC. If it became necessary in a disciplinary proceeding before CSIC to refer to privileged solicitor‑client matters, this could not be done without the client’s consent or express statutory provisions to preserve the privilege. No such statutory provisions exist. Thus an employee could be deprived of a proper defence. This distinction of classes between paralegals and those designated under the Regulations, particularly students‑at‑law, the applicant and intervener contend is discriminatory.
[28]I do not find that the Regulations are discrimi-natory. To refer again to Mangat the federal government has the power to choose persons who can represent others for IRPA purposes including representations before the Board, and such persons need not be lawyers. Not to select a group of persons, such as lawyers’ employees, is not, in itself, discriminatory.
[29]To the extent that solicitor‑client privilege may cause an issue in respect of disciplinary proceedings, CSIC and the law societies are free to make suitable arrangements such as transfer of disciplinary hearings respecting lawyers’ employees to the appropriate law society. This situation parallels that considered by the Ontario Court of Appeal in Wilder v. Ontario Securities Commission (2001), 53 O.R. (3d) 519, where many of the same issues arose in respect of a situation where the Ontario Securities Commission may have to discipline a person entitled to practice before it who is also a lawyer governed by the Law Society. As stated by Sharpe J.A. for the Court in paragraph 32 of the reasons:
However, I do not accept that contention of the appellants and The Law Society that the need to respect solicitor‑client privilege requires a blanket preclusion, preventing the OSC from reprimanding lawyers in all cases, provided the OSC pays adequate heed to the importance of solicitor‑client privilege.
[30]In paragraph 34 of those reasons, Sharpe J.A. noted that while a situation where a person could be put in a dilemma should be avoided, if it cannot be avoided, then the non‑legal body should defer to the legal body or at least time its proceedings in such a way so as to preserve substantive rights.
[31]I find, therefore, that the Regulations are not discriminatory.
4. Do the Regulations exceed the powers conferred by the statute?
[32]The statute says that the Regulations may govern who may or may not represent, advise or consult in respect of IRPA matters. The Regulations define that lawyers, notaries, students‑at‑law and CSIC members are persons who may represent, advise or consult.
[33]The applicant argues that the creation of a self‑governing profession involves valuable rights and is directed toward vulnerable interests as was stated by the Supreme Court of Canada in Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869, at pages 886‑887 (Pearlman). It argues that the creation of a new professional body requires very clear authority in the statute itself. It cannot be left to a regulation which in turn authorizes a newly created corporation, to select members, to see that they are trained and to discipline them.
[34]At pages 886‑887 in Pearlman, the applicants note that the Court stated that there was “legislative rationale behind making a profession self‑governing” and then referred to a study paper entitled The Report of the Professional Organizations Committee (1980). The quote from that paper is that when legislatures enact statutes for self‑regulation, it is a matter of public policy and that the legislatures ultimately remain responsible.
[35]At page 888 in Pearlman, the applicants rely on Attorney General of Canada et al. v. Law Society of British Columbia et al., [1982] 2 S.C.R. 307, at pages 335‑336 where Justice Estey states that a province may use legislative action in the regulation of members of a law profession because of the public interest. The applicants broaden Justice Estey’s decision at page 888 that a statute creates the necessary independence that is required to ensure the delivery of services to citizens.
[36]The respondents, relying on Professor Peter Hogg, Constitutional Law of Canada, loose-leaf (Toronto: Carswell, 1997) at pages 14‑12 and 14‑4, and cases such as Hodge v. Reg. (1883), 9 App. Cas. 117 (P.C.); In re Gray (1918), 57 S.C.R. 150; and Attorney-General of Canada et al. v. Nolan and Hallett & Carey Ltd., [1952] 3 D.L.R. 433 (J.C.P.C.) state that Parliament has broad power to delegate by way of regulation subject to the scope of the enabling legislation. Subdelegation of this kind is for the legislature, not the courts, to decide.
[37]The line of authority relied upon by the respondents is persuasive. Parliament can delegate, by way of regulation-making power, provided such designation is consistent with the purposes of the statute. The Regulations here are consistent with that purpose. The case law does not mandate that a statute enactment for the creation of a self‑governing body. Rather, the jurisprudence suggests that it is a matter for Parliament or the provincial legislatures to determine the need for a statute in creating a self‑regulatory body.
Conclusion
[38]I find, therefore, that the Regulations are valid; they are intra vires and properly within the scope of the enabling legislation.
[39]The parties have asked that I provide each of them with an opportunity to submit a proposed question or questions for certification and I will do so.
[40]The parties have agreed that there will be no costs.
JUDGMENT
FOR THE REASONS GIVEN ABOVE:
1. The application is dismissed;
2. The Regulations Amending the Immigration and Refugee Protection Regulations, SOR/2004‑59 are intra vires;
3. The parties have a period of 30 days from the date of this judgment to submit a proposed question or questions for certification; and
4. No order as to costs.