Person Concerned: KEN MILLER
Date(s) of Hearing: N/A
Place of Hearing: Toronto, Ontario (In Chambers)
Date of Decision: 16 December 2011
Panel: Lois D. Figg, Chairperson’s Delegate
This decision concerns the practice of Ken Miller (hereinafter "Mr. Miller") before the Immigration and Refugee Board (IRB or the "Board"). It considers whether Mr. Miller is in breach of the provisions of the Immigration and Refugee Protection Act, Immigration and Refugee Protection Regulations and the IRB Policy for Handling IRB Complaints Regarding Unauthorized, Paid Representatives (hereinafter "the Policy") and if so, what, if any, sanctions are appropriate to impose upon him.
Mr. Miller is not a member in good standing of a law society of a province, the Chambres des notaires du Québec, or the Immigration Consultants of Canada Regulatory Council (ICCRC), nor was he a member in good standing of the Canadian Society of Immigration Consultants (CSIC).
Since April 2004, Mr. Miller has represented 30 claimants before the Refugee Protection Division (RPD), and 2 appellants before the Immigration Appeal Division (IAD), purportedly on a "without a fee" basis. Mr. Miller corresponds with the Board using the address 3768 Bathurst Street, Suite 300, Toronto, Ont. M3H 3M7.
Under the Policy, both the person who is the subject of the proceeding and their counsel must provide the Board with a signed declaration that the counsel is an unpaid representative (section 5.3).
Mr. Miller has submitted Notice of Representation Without a Fee forms on which he declared that he is not charging a fee for representing the claimant or appellant, as the case may be, as their counsel in their proceedings before the Board.
A complaint against Mr. Miller arose in RPD file TA9-07558, where the claimant brought an Application to Reopen her refugee claim, which was determined to have been abandoned. In support of her application, the claimant submitted a statutory declaration, dated September 14, 2010, in which she stated, among other things, that:
- Mr. Miller assisted her, for a fee, with making her claim at Etobicoke Citizenship and Immigration Canada and preparing her Personal Information Form (PIF);
- She paid Mr. Miller more than $2,000.00 for his services, and was to pay him additional money at the time of the hearing of her refugee claim;
- Mr. Miller advised her to use an address for correspondence with the Board at which she did not reside and did not notify her of the abandonment hearing, for which the Board sent a notice to that address; and
- She only later learned that Mr. Miller was not an authorized representative.
The Notice of Abandonment Decision issued by the Board on June 30, 2009, indicates that the claimant’s claim was determined to have been abandoned because her PIF was not provided on time and neither she nor her counsel attended the abandonment hearing on June 23, 2009.
By Notice of Decision date November 17, 2010, the claimant was advised that her application to reopen the claim was allowed. The Board member’s endorsement states:
I accept claimant’s statutory declaration that her former counsel told her to use his address for her claim & that she never received her notice of hearing. This in effect resulted in a denial of natural justice to the claimant through no fault of her own other than following the instructions of former counsel.
In view of this information and Mr. Miller’s frequent appearances as unpaid counsel at the Board, the Assistant Deputy Chairperson of the RPD, Central Region, determined, on January 24, 2011, in accordance with section 5.6 of the Policy, that there was sufficient information to proceed with a review of Mr. Miller’s practice before the Board.
At the direction of the Assistant Deputy Chairperson, the Registrar advised Mr. Miller by letter dated January 24, 2011, that the Board would be conducting a review of the facts to determine whether he should be prohibited from representing and appearing on behalf of any person in their proceedings before the Board.
Mr. Miller was asked to provide written representations in response to these allegations by February 14, 2011, and to bring to the Board’s attention any additional facts he considered relevant. Mr. Miller was also requested to provide information about the nature and structure of his firm, how it is funded, the services it provides particularly for persons who have proceedings before the Board, and what fees are charged or requested for those services, as well as supporting financial and other records. He was further advised that the Board may impose a sanction with conditions prohibiting him from representing and appearing on behalf of any person before the Board, and was asked to make submissions as to how the Board should deal with that matter. Mr. Miller was further advised that if he wished to make representations on his behalf in person, he should so indicate in his written response to the Board and the necessary arrangements would be made for his attendance. Finally, Mr. Miller was advised that if he failed to reply to the letter, the Board would make its determination nonetheless, based on the information before the Board.
The Board did not receive a reply from Mr. Miller within the time period specified, nor afterwards. Therefore, the Assistant Deputy Chairperson has proceeded with the review of Mr. Miller’s practice and is making a determination pursuant to the provisions of the Policy, without the benefit of any response from him.
Policy for Handling IRB Complaints Regarding Unauthorized, Paid Representatives
On April 10, 2008, the Board introduced the Policy, which is available online. The Policy sets out procedures for dealing with complaints regarding counsel who are not "authorized representatives" and who may, for fee, be representing, advising or consulting with a person who is the subject of an IRB proceeding.
Section 3.5 of the Policy states that the Chairperson’s delegate under the Policy is the Assistant Deputy Chairperson or Director of the Division in the region in which the facts leading to the complaint arise. Since the facts leading to the complaint arose in the RPD, Central Region, as the Assistant Deputy Chairperson of that Division in the Central Region, I am the Chairperson’s delegate under the Policy in this case.
The issue of whether an Assistant Deputy Chairperson, who has been delegated the power by the Chairperson of the Board, has the jurisdiction to suspend an agent or representative of an individual from appearing before a Division of the Board because of concerns regarding the agent’s or representative’s conduct, was dealt with in Rezaei.Note 1 The Federal Court – Trial Division found that subsection 58(4) of the former Immigration ActNote 2 granted to the Chairperson the power to delegate authority to an Assistant Deputy Chairperson. Moreover, the Court found that the Board has the inherent jurisdiction to monitor its own procedures in order to ensure integrity, and that in the absence of specific procedures laid down by statute or regulation, the Board has the ability (through the Assistant Deputy Chairperson with the delegated power of the Chairperson) to suspend an agent or representative from appearing before the Board on behalf of another person.
After the decision in Rezaei, the Immigration and Refugee Protection Act (IRPA) came into force on June 28, 2002, and the former Immigration Act was repealed. Subsection 58(4) of the Immigration Act has been replaced by subsection 159(2) of the IRPA, which reads:
159. (2) The Chairperson may delegate any of his or her powers under this Act to a member of the Board, other than a member of the Immigration Division, except that
- powers under subsection 161(1) may not be delegated;
- powers referred to in paragraphs (1)(a) and (1)(i) may be delegated to the Executive Director of the Board; and
- powers in relation to the Immigration Division may only be delegated to the Director General, Directors or members of that Division.
It is clear that the Chairperson has statutory power to delegate to Board Members, other than Members of the Immigration Division, any of his powers, except the power to make rules as set out in subsection 161(1) of the IRPA, the power to supervise and direct the work of IRB staff, and the power to appoint and fix the remuneration of experts or persons with special knowledge to assist the Divisions of the Board (the latter two powers may be delegated to the Executive Director of the Board).
I find that the power of the Chairperson to delegate under the IRPA is at least as broad as the power to delegate conferred by the former Immigration Act. Consequently, I find that the decision and reasons for judgment in Rezaei regarding the issues of jurisdiction of the Board to ensure the integrity of its process and delegation of the Chairperson’s power continue to be applicable under the IRPA. I further find that the Chairperson has delegated to me his power with respect to this matter in accordance with section 3.5 of the Policy.
Legislation on "Authorized Representatives"
Section 13.1 of the Immigration and Refugee Protection Regulations, which came into force on April 13, 2004 and was repealed on June 30, 2011, provided in part:
13.1. (1) Subject to (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.
"Authorized representative" was defined in section 2 of the Regulations and comprised members in good standing of a bar of a province, the Chambres des notaires du Québec or the CSIC.
Section 91 of the IRPA, which was amended as of June 30, 2011, now provides in part:
91. (1) Subject to this section, no person shall knowingly, directly or indirectly, represent or advise a person for consideration — or offer to do so — in connection with a proceeding or application under this Act.
(2) A person does not contravene subsection (1) if they are
- a lawyer who is a member in good standing of a law society of a province or a notary who is a member in good standing of the Chambres des notaires du Québec;
- any other member in good standing of a law society of a province or the Chambres des notaires du Québec, including a paralegal; or
- a member in good standing of a body designated under subsection (5).
(5) The Minister may, by regulation, designate a body whose members in good standing may represent or advise a person for consideration — or offer to do so — in connection with a proceeding or application under this Act.
Regulations designating the ICCRC as the regulator of immigration consultants also came into force on June 30, 2011.
Under the terms of the Policy, the Board has undertaken to actively monitor and ensure that only authorized representatives, or those who do not receive a fee for their services, act as counsel before all its Divisions. Because of recent changes to the IRPA, the Board now monitors whether counsel who are not "authorized representatives" are directly or indirectly representing or advising a person for consideration in connection with a proceeding before the Board.
The Federal Court has recognized that the Policy imposes an important responsibility on the Board in order to properly fulfil its mandate. Mr. Justice Lagacé stated in the case of Domantay:
 … the Court shares the view that there is a duty incumbent upon the Board to verify that those individuals representing clients with whom it has dealings are authorized representatives pursuant to the Regulations, or that they are not receiving a fee for their services. This duty envisions the protection of applicants and the preservation of the integrity of Canada's immigration system.Note 3
The Policy provides, in section 5.5 that frequent appearances at the Board as an unpaid representative may be an indication that a representative who claims to be unpaid may actually be charging a fee. According to the Policy, the frequent appearances are of greater concern when combined with other factors such as relevant information received from a present or former client of that counsel.
The Board accepts as established the allegation that Mr. Miller received payment for his services in advising and representing the claimant in RPD file TA9-07558 in her proceedings before the Board, in particular by preparing her PIF. Mr. Miller has not provided any evidence to dispute the claimant’s sworn statement that she paid Mr. Miller more than $2,000.00 for his services. I therefore find that by accepting monetary payment for advising and representing the claimant, Mr. Miller accepted a fee to represent or advise a person who is the subject of a proceeding before the IRB, contrary to the Immigration and Refugee Protection Regulations in force at the time. This would also constitute representing or advising a person for consideration in connection with a proceeding contrary to subsection 91(1) of the IRPA as it presently reads.
In addition to the complaint from Mr. Miller’s former client, his frequent appearances at the Board since April 2004, allegedly as an unpaid counsel, raise legitimate concerns about the nature of Mr. Miller’s practice and whether it constitutes a business, rather than providing a pro bono service for refugee claimants. The Board took notice of a newspaper article titled, "Entrepreneur a jack of all trades, qualified in none," which was published in the Toronto Star on September 17, 2009 that stated that Mr. Miller operated various businesses, including an immigration consulting business, and has engaged in at least one other activity for which he was not properly licenced. Consequently, Mr. Miller was asked to provide information about the nature and structure of his firm, how it is funded, the services it provides particularly for persons who have proceedings before the Board, and what fees are charged or requested for those services, as well as supporting financial and other records. To date Mr. Miller has not provided any response to the allegations or any information and documentation relating to his practice.
Since it is the responsibility of the Board to ensure that the requirements of the legislation concerning authorized representatives are respected in order to protect refugee claimants and safeguard the integrity of Canada’s refugee determination system, and since Mr. Miller has not furnished proof to satisfy the Board that he is providing a pro bono service for refugee claimants he represents before the Board, I hereby order that Mr. Miller is prohibited from representing or appearing on behalf of any person in any proceeding before any Division of the Board. This prohibition is effective immediately and will remain in effect indefinitely, until such time as Mr. Miller provides proof that satisfies the Board that he is not accepting consideration for his services in connection with proceedings before the Board. A declaration from Mr. Miller that he is acting as an unpaid representative is not sufficient proof that he is not accepting consideration for his services in any given proceeding.
In imposing this requirement, I was mindful of the fact that Mr. Miller is not a member in good standing of a bar of a province, the Chambres des notaires du Québec, or the ICCRC, nor was he a member of the CSIC, and therefore he is not entitled to accept consideration for representing or advising any person in connection with a proceeding or application under the IRPA. Consequently, this decision should not affect his ability to earn a livelihood or impose an economic hardship on him.
Should Mr. Miller become a member in good standing of a bar of a province, the Chambres des notaires du Québec, or the ICCRC, this decision will no longer be effective.
Upon issuance of this decision, I direct the Registrars of the Board to notify any persons who are represented by Mr. Miller that he is prohibited from representing and appearing on behalf of any person in any proceeding before any Division of the Board, effective immediately. The prohibition will remain in effect indefinitely, until such time as Mr. Miller provides proof that satisfies the Board that he is not accepting consideration in connection with his practice before the Board. A declaration from Mr. Miller that he is acting as an unpaid representative is not sufficient proof that he is not accepting consideration for his services in any given proceeding.
Signed on 16 December 2011