You trusted someone with your immigration file. They missed a deadline, filed a form with the wrong information, failed to submit the documents you gave them, or told you a hearing was going ahead when it had already happened. Now the application is refused, or the claim is dismissed, and you are the one facing the consequences.
This is more common than it should be, and the law recognises it. Under the right conditions, the failures of a previous representative can form the basis for reopening or reviewing a decision. But the path is narrow, and the procedure has to be followed precisely.
The legal principle
The decision-maker, whether a visa officer, the Immigration and Refugee Board, or IRCC, generally holds the applicant responsible for the conduct of their chosen representative. If your representative filed a weak application, that is your application. Courts are cautious about allowing people to disown their representative’s work after a loss.
The exception is where the representative’s conduct amounted to incompetence serious enough to cause a miscarriage of justice. The test used by the Federal Court and the IRB has three parts:
- The acts or omissions constituted incompetence. Not a strategic choice that did not work, but conduct falling below what a competent representative would have done. Missing a deadline, failing to file evidence the client provided, and not informing the client of a hearing date are the kinds of failures that qualify.
- The incompetence caused prejudice. You must show a reasonable probability that, but for the failure, the outcome would have been different. If the application would have been refused anyway, the argument fails.
- The representative was given notice and an opportunity to respond. This is a procedural requirement, and it is mandatory.
The protocol: Notifying the former representative
The Federal Court has a published protocol for allegations against former counsel, and the IRB follows a similar practice. Before an allegation of incompetence can be raised, the former representative must be sent written notice setting out the allegation in detail, with a copy of the material relied on, and given a reasonable opportunity to respond. Their response, or their failure to respond, is then included in the record.
The Court also expects that, where the allegation is serious, a complaint has been made or will be made to the relevant regulator, such as the Law Society of Ontario for lawyers or the College of Immigration and Citizenship Consultants for consultants. The complaint is not a substitute for the notice, but the two usually go together.
Skipping the protocol is fatal to the argument. A judge will not consider an allegation against a former representative who has not been given the chance to answer it.
Where the argument can be raised
The principle can support several kinds of relief:
- Judicial review of a refusal, where the representative’s failure meant the decision-maker never saw evidence that should have been in the file.
- An application to reopen a refugee claim or appeal that was declared abandoned because the representative failed to attend or failed to tell the client about a hearing.
- New evidence at the RAD, where the evidence was available at the time of the RPD hearing but was not filed because of the representative’s incompetence, and the appellant did not know.
- An extension of time to file for judicial review, where the deadline was missed because the representative did not act.
In each case the decision-maker will ask the same questions: what did the representative do or fail to do, what did the client know at the time, and what would have happened otherwise.
What you need to gather
The strongest cases are built on paper. Collect:
- your retainer agreement and receipts;
- all correspondence with the representative, including messages and emails;
- the documents you gave the representative, with proof of when you provided them;
- the refusal or dismissal, and the record of what was actually filed;
- your own account, in an affidavit, of what you were told and when.
Requesting the complete file from the former representative, and requesting the decision-maker’s file through an access to information request, will show what was and was not submitted.
Unlicensed representatives
Some of the most serious cases involve people who were never authorised to represent anyone. In Canada, only lawyers, paralegals in limited circumstances, Quebec notaries, and licensed consultants may represent clients for a fee. If your representative was none of these, the incompetence argument may be available, and their conduct should be reported. We wrote about how to check credentials in our post on immigration consultants versus immigration lawyers.
Act quickly
These arguments are time-sensitive. Deadlines for judicial review and for reopening applications run from the date of the decision, not the date you discovered the problem, and extensions are discretionary.
If you believe a previous representative’s failures cost you a decision, book a consultation with Kabir & Alam Lawyers. Our immigration litigation practice can assess whether the test is met, handle the notice to former counsel, and pursue the appropriate remedy.