On March 25, 2024, CILA sent the following letter to Government of New Brunswick immigration officials regarding the province’s “Using a Representative” webpage.
Re: New Brunswick’s New Webpage “Using a Representative”
I am writing on behalf of the Canadian Immigration Lawyers Association (CILA), an organization representing nearly five hundred immigration lawyers from across the country. CILA takes great pride in advancing immigration law, policy, and practice in Canada, and we actively engage in discussions at various forums to provide insights and perspectives. For example, CILA has shared its expertise with the House of Commons Standing Committee on Citizenship and Immigration and the Standing Senate Committee on Social Affairs, Science, and Technology, where our board members regularly provide valuable insights on immigration matters.
We write with concern about the recently- updated Government of New Brunswick (“GNB”) Immigration webpage entitled “Using a Representative” found online at:
We have noticed the GNB updated their immigration webpages in early March 2024. We are concerned about the omissions on this page; specifically the new page on representatives neglects to offer direct information, hyperlinks, or listings to provincial law societies. However, the site does have links allowing someone to access information about immigration consultants,
The omission of a reference to lawyers serves to minimize the role of lawyers as authorized representative under section 91 Immigration and Refugee Protection Act (IRPA). As you may be aware, lawyers are integral stakeholders and service providers in the delivery of legal services and providing legal advice to prospective applicants to Canada. In not linking the GNB page to provincial law societies, visitors are deprived of gaining access to information about duly authorized representation under the federal legislation that governs the interpretation of Canadian immigration laws, policy, programming, and operations. In omitting to list lawyers as authorized representatives, lawyers are effectively excluded in not referenced as authorized legal service providers for the purposes of exploring New Brunswick immigration pathways.
By failing to include links to provincial law societies or information on the role of lawyers in the immigration process, the new web page fails to alert visitors to the availability or value of seeking advice from highly trained legal professionals. As noted the current design which only directs visitors to choose from lists of immigration consultants or Human Resources (HR) Professionals, favours these other professionals over immigration lawyers and members of the bar across Canada. In prioritizing, immigration consultants and HR Professional over lawyers on this new site, the GNB fails to place lawyers on an equal footing with other authorized service providers. The effect is to minimize the role that lawyers play in one of the most ever- changing and complex areas of law in Canada. The way the site is currently structured, it fails to properly inform the public about the role that immigration lawyers can play in the application process in favour of showcasing the role of immigration consultants and (HR) professionals.
Indeed, an important point to keep in mind is that HR professionals are not authorized to offer advice or practice immigration law federally under IRPA. Kindly consult the following IRCC links for verification.
- https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/service-delivery/use-representatives/who-act.html
- https://www.canada.ca/en/immigration-refugees-citizenship/services/immigration-citizenship-representative/choose.html
So the Government of New Brunswick is in effect encouraging the public to consult professionals who do not have the legal authority to provide advice about immigration law while completely ignoring lawyers who do have the legal authority and practical expertise.
In view of these concerns, we would like to offer some possible solutions so that applicants looking to settle in New Brunswick are provided with a complete set of options for representation in their quest to apply for temporary and permanent residence status in New Brunswick. Our recommendations are cited below.
Lawyers
- Under “Choosing an Authorized Representative;” tab, links could easily be provided to all Law Societies across Canada or to the Immigration, Refugees and Citizenship Canada website where a full list of Provincial/Territorial Law Society links are found: https://www.canada.ca/en/immigration-refugees-citizenship/services/immigration-citizenship-representative/choose/authorized.html#law-
Paralegals
- We recommend that the listing of paralegals be set out separately from lawyers. By grouping lawyers and paralegals together, this creates confusion about the skills and scope of practice open to each distinct legal professional. In New Brunswick and other Provinces, paralegals are not members of the regulated legal profession and are unable to legally practice immigration law or provide legal advice under IRPA and the IRPR. Ontario is the only Province in Canada that regulates paralegals and where they are authorized to deliver a limited scope of legal advice and services in relation to work before the Immigration and Refugee Board (IRB) and not in relation to the full complement of applications available under the IRPA. Please refer to the Law Society of Ontario Notice in this regard at https://lso.ca/news-events/news/latest-news-2023/notice-to-the-profession-important-information-re
- We recommend that paralegals in Ontario governed by the Law Society of Ontario be listed separately from lawyers for IRB work only, so as to eliminate any confusion and ensure that the GNB is not inadvertently recommending that applicants consult potential service providers that are not authorized to provide a full scope of legal advice or services under section 91(2)(b) of IRPA.
HR Professionals
- We recommend that the GNB remove HR Professionals from the “Using a Representative” page. HR professionals are not authorized to provide legal advice or services under section 91(2)(b) of IRPA. Clarification should also be provided to confirm that the practice of law in New Brunswick is restricted by section 33(1) of the New Brunswick Law Society Act, 1996.
- This website highlights the use of an “Authorized HR Professional” to assist in identifying, advertising, and recruiting candidates. It does not differentiate HR Professionals from lawyers or regulated immigration consultants. It should be noted that there is no such title as an “authorized” HR Professional under federal Immigration legislation or employment standards legislation in New Brunswick. The heading makes it look like HR Professionals are authorized representatives for all immigration matters under Canadian immigration legislation. While an HR Professional may be a signing authority on behalf of an employer, they are not authorized to provide legal advice or assist applicants with immigration application. It is only under the section on “Fraud” where reference is made to HR Professionals being ineligible to offer immigration advice or assistance with applications. The failure to clearly identify this distinction between authorized representatives under the specific section on HR Professionals serves to mislead to the public.
- HR Professionals are neither subject to strict codes of professional conduct nor required to maintain professional liability insurance as are lawyers. Nor are they required to undertake formal legal training in immigration law and practice. There is also no requirement that these individuals be members of the CPHR New Brunswick. While we understand that the GNB wants to protect people against unscrupulous recruiters, this section does not clarify the limitations of HR Professionals in the immigration field. The way the section on HR Professionals currently reads, it suggests that there is provincial acquiescence for HR Professionals to partake the unauthorized practice of law. This section of the webpage is incomplete and creates confusion about the proper role of HR Professionals in the immigration field. In fact, the messaging insinuates that HR Professionals may serve as immigration advisors.
- While it is inappropriate to list HR Professionals as representatives on this page, if GNB is concerned about unscrupulous recruiters, this page could mention the prohibition on employers directly or indirectly recovering fees for recruitment from foreign works as outlined section 38.91(2) of the Employment Standards Act SNB, c.E-7.2. Any further details about the limited role of HR Professionals in connection to immigration matters would be more appropriate to list on the Working NB site. A distinction between HR Professionals, regulated immigration consultants authorized by the CCIC and lawyers governed by provincial and territorial law societies must be made if listing HR Professionals on Working NB’s site and GNB must also make the legislative restrictions on fee recovery clear to protect foreign nationals and ensure employers are well informed of the law.
Fraud Warning: distinction between authorized and unauthorized representatives and information about fraud and scam tactics
- In the section about “Protecting Yourself Against Fraud.”, there is no reference as to who may or may not represent an individual in immigration matters. This is a simple caveat that should be offered by the GNB and is publicized by IRCC and all provincial and territorial nomination programs. The unmistakable omissions in this section about fraud awareness demonstrates that those responsible for this communication have insufficient knowledge or awareness about the legal parameters of representation under IRPA or the prevalence of fraud in the immigration space. The page about fraud as it presently reads fails to convey the most basic and appropriate information about those who are authorized and unauthorized to offer legal advice and services. Moreover, it omits reference to the vulnerability of prospective applicants who could become a victim of fraud.
- We refer the GNB to other similar fraud warnings offered by IRCC and other provinces so that the GNB can align their messaging to conform with federal and provincial law. Please refer to the following links.
Based on a review of the above-referenced federal and provincial immigration web pages related to fraud in the immigration field, it is apparent that the GNB messaging on this crucial topic is woefully lacking and incomplete thereby doing a disservice to potential applicants destined to New Brunswick.
GNB web page design and content minimize the value of lawyers to potential applicants
- Our assessment of the GNB immigration page design and content is that overall, it fails to offer balanced coverage about the role of lawyers compared to the information it offers about Immigration Consultants and HR Professionals.
- As immigration applications are of significant importance to individual applicants and to employers alike, the GNB should ensure that all authorized representatives be showcased in the information publicized by the provincial government. The GNB should acknowledge that lawyers may be helpful in advising on immigration pathways and eligibility requirements including obligations imposed on employers, temporary and permanent residents in Canada.
- Immigration law in Canada is governed by Federal legislation under IRPA and the Immigration and Refugee Protection Regulations. Each province and territory maintain unique laws on immigration selection and recruitment. Understanding and navigating these areas of law is complex. Any potential breach of federal and/or provincial law can result in serious consequences for employers and individuals.
- Individual applicants and New Brunswick employers may need assistance navigating laws, policies, and operational issues. As such, they should be encouraged to seek out the assistance from trained legal professionals. It is in the best interest of individuals, employers, and the GNB that all parties clearly understand their rights and obligations before, during and after launching an immigration application. Lawyers are trained to identify issues, and properly advise applicants and employers. This training can prevent disqualification, misrepresentation, compliance issues amongst others that can be detrimental to all parties in an immigration application.
- The GNB must ensure it that it adequately conveys current and complete information about authorized representation under IRPA and provincial law. Moreover, the GNB must ensure that government employees and agents do not hold themselves out as capable of providing immigration or employment legal advice. The sentence on the current page which reads “And if you have specific questions or concerns, you can write to immigration@gnb.ca” may be construed as offering a line of communication whereby legal advice may be available.
- Given the parameters of section 91 of IRPA, GNB employees and agents may only offer general information about provincial and federal immigrations programs and the basic requirements. Employees of the Province may not hold themselves out as offering legal advice. Specifically, they must be mindful that they are not legally able to advise an individual or employer on matters under the purview of the IRPA and IRPR or provincial employment law.
- We suggest that the GNB explain that using a lawyer can be beneficial to applicants and employers. In addition, the GNB should specify and provide a disclaimer on their website and on any publications that information provided by employees and agents of the province should not be construed as legal advice.
We trust that the above helps to outline the specific concerns about the content and omissions on this new webpage and the messaging it conveys. In our opinion, this new version of the website is incomplete and fails to offer balanced information on the roles that lawyers, paralegals, immigration consultants, HR professionals or employees and agents of the GNB.
We would appreciate the opportunity to offer additional feedback on the new website and would be pleased to work with the GNB to ensure that prospective applicants to New Brunswick have access to the most current and accurate information to assist them as they embark on their immigration journey to the province.
We look forward to hearing from you and thank you for your attention to these very serious concerns.
Yours truly,
Barbara Jo Caruso
Co-President
