Working with An Immigration Advisor

First, you need to establish if the person you hired is a legitimate immigration advisor or whether you are the victim of a scam:

The quickest way to determine if somebody is a legitimate immigration advisor is to find out if they are registered with the Canadian College of Immigration Consultants (CIIC) or a lawyer registered with a Provincial Law Society. In Ontario, paralegals can represent you but must be in good standing with the Ontario Bar Association. In Quebec, notaries can represent you, but must be in good standing with the Chambre des Notaires du Québec. If the immigration advisor you hired was not registered with a regulator then it’s more than likely they were not legitimate and you won’t be able to do much about it.

Registered immigration advisors have professional indemnity insurance as a requirement of their registrations with their regulator. If the immigration advisor is not registered it means you will need to try to recover your money or any damages from them personally, which is very unlikely to succeed, especially if their operation is a scam.

Second, if you hired a registered immigration advisor you need to determine what your legal relationship with that advisor was:

Did you pay somebody to do your application on your behalf, did you pay them to review your application before it was submitted, or did you just book an initial consultation with them with the intention of completing the application on your own? The distinction is important for establishing what your legal relationship was and will help in establishing the third criteria. This question will help determine whether you had established if the immigration advisor you hired owes you a duty of care.

Third, you must determine the standard of care owed.

To succeed in a lawsuit against a registered immigration advisor you will need to prove they fell below the standard of care required of a person of their education, experience, and qualification. The standard of care is often fact-specific to a case and will be different depending on the service for which you paid.

Those who hold themselves out as having a specific skill or knowledge are held to a higher standard of care in relation to the performance of those tasks. Immigration lawyers and regulated immigration consultants hold themselves out to be knowledgeable parties in relation to immigrations laws and the immigration system. The courts have held that the standard of care is that of a reasonably prudent and competent member of that profession.

Ex.: In Romans v. Howlund International Corp., the defendant immigration consultant failed to advise the plaintiffs about the availability of a flagpole application. The plaintiff and defendant both provided expert evidence of an immigration consultant’s standard of care. The Court found that the immigration consultant ought to have advised the plaintiffs that flagpole applications existed and that the failure to do so did not accord with what would be expected of a reasonable immigration consultation with similar knowledge.

Another example would be where an immigration advisor ties your immigration to a job and asks to be paid fees for obtaining a job for you, the candidate. There are detailed rules and regulations around international recruitment into Canada. If the registered immigration advisor breaks any of these rules, they will have fallen below the standard of care.

Fourth, you must assess the losses suffered.

Courts can only provide you with compensation for losses you suffered because of the breach of the standard of care.

If you hired a registered immigration advisor and weren’t satisfied with their service but didn’t suffer any losses, your best course of action may be to file a regulatory complaint against them. This means filing a complaint with the CICC about an immigration consultant or filing a complaint with the law society that the lawyer is registered to practice in (in both scenarios you must get direction from the professional regulators). A regulatory complaint will mean the regulator investigates the registered immigration advisor’s conduct. If they find some wrongdoing, they may apply administrative penalties. These might include conditions to the immigration advisor’s practice (Ex. not being able to take cash payments or suspension from practice if there is a very serious breach).

If you did suffer losses because of the breach of the standard of care of a registered immigration advisor, you may have the basis to take a court action against them. The kinds of losses can vary from person to person. One common example occurs when a person loses their immigration status in Canada and can no longer work legally. In this case, the loss is lost wages. Another common example is the fees paid to a new immigration advisor to fix the issues created by the negligent immigration advisor. There can be other intangible losses like the anxiety of waiting for immigration documents, the fear of being removed from the country, or even losing access to healthcare as a result of losing status.

In conclusion:

• if you hired a registered immigration advisor;
• that advisor acted in a way that falls below the standard of care; and
• you suffered losses because of that conduct

then you may have the potential for a strong lawsuit against the registered immigration advisor.

Each case is different and requires a qualified lawyer to assess the facts and documents before coming to a final conclusion.

Prepared by Eoin Logan, Personal Injury, Civil Litigation & Commercial Litigation Lawyer