Operational Bulletin 437 - June 13, 2012

The Importance of the Solicitor–Client Privilege Relationship

Issue

Section 10 of the Immigration and Refugee Protection Regulations (IRPR) sets out the requirements regarding the form and content for applications made under the Immigration and Refugee Protection Act (IRPA). Following the coming into force of Bill C-35, subsection 10(2) of the Regulations was amended requiring applicants to disclose the name and contact information of any authorized representative who has or is providing advice, for consideration, on matters related to the Immigration and Refugee Protection Act (IRPA) and in connection with the particular application.

The purpose of this Operational Bulletin (OB) is to provide guidance to officers regarding the interpretation of the regulatory amendments to paragraphs 10(2)(c.3) and (c.4) of IRPR.

Background

Bill C-35, An Act to Amend the Immigration and Refugee Protection Act, came into force on June 30, 2011, making it an offence for anyone other than an authorized representative to advise or represent a person, for a fee or other consideration, in connection with an application or proceeding under the IRPA.

In order to align the Regulations with the changes to the IRPA by way of Bill C-35, paragraph 10(2) of the Regulations was amended.

Paragraphs 10(2)(c) of the Regulations and its subsections currently state that:

2) The application shall, unless otherwise provided by these Regulations,

• (c) indicate the class prescribed by these Regulations for which the application is made;
• (c.1) if the applicant is represented in connection with the application, include the name, postal address and telephone number, and fax number and electronic mail address, if any, of any person or entity — or a person acting on its behalf — representing the applicant;
• (c.2) if the applicant is represented, for consideration in connection with the application, by a person referred to in any of paragraphs 91(2)(a) to (c) of the Act, include the name of the body of which the person is a member and their membership identification number;
• (c.3) if the applicant has been advised, for consideration in connection with the application, by a person referred to in any of paragraphs 91(2)(a) to (c) of the Act, include the information referred to in paragraphs (c.1) and (c.2) with respect to that person;
• (c.4) if the applicant has been advised, for consideration in connection with the application, by an entity — or a person acting on its behalf — referred to in subsection 91(4) of the Act, include the information referred to in paragraph (c.1) with respect to that entity or person;

Instructions

The regulatory amendments to paragraphs 10(2)(c.3) and (c.4) of IRPR are intended to apply only to the advice or representation that pertains to a specific application that is submitted to the Government and to be interpreted in a manner consistent with solicitor-client privilege. It requires the applicant to provide this information to enable the Government to correspond with the applicant’s counsel, should there be a need to do so.

More specifically, neither the immigration applicant nor their counsel will be required to inform the Government of the essence of any solicitor-client communications. The amended disclosure requirements are intended to ensure that officials are informed of the coordinates of the applicant’s representative and not to be apprised of discussions between the applicant and their representative which may be subject to solicitor-client privilege. As such, paragraphs 10(2)(c.3) and (c.4) are not applicable, to situations where the applicant has sought legal advice regarding other areas of law where there is no link to immigration matters, such as criminal law, family law, wills and estates, etc.

In particular, officers should not interpret the wording of the regulatory amendment to authorize them to seek to be informed of the essence of any advice from a solicitor to a client, regardless of whether that lawyer was retained as a representative in an immigration application or proceeding and regardless of whether or not an application was filed.

The IMM 5476 (Use of Representative) is the form to be used to disclose the name and contact information of any authorized representative providing representation or advice for a fee, or other consideration, at any stage of an application under IRPA.

It should be noted that solicitor-client privilege extends to persons acting as agents for the solicitor, such as legal assistants and other staff members in the solicitor’s office. Where a law office employs not only a lawyer, but also an immigration consultant and/or a paralegal to whom Bill C-35 may apply, it will be the responsibility of the law office to determine which individual will be the responsible professional who will be named on the IMM 5476.