Amendments in 2019 to the Immigration and Refugee Protection Act and the Citizenship Act — which bar organizations say have potential ramifications for lawyers practising in criminal, tax and other federal legal spheres — expanded the federal government’s regulation-making power to enable the creation of new administrative monetary penalties (AMPs) applicable to lawyers and other persons who provide or offer paid representation or advice to clients in immigration and citizenship matters.
The proposed regulations, which also apply to the Citizenship Regulations, prohibit a legal professional, who represents or advises someone for payment, from misrepresenting or withholding information, advising them to misrepresent or withhold information, or communicating misleading information.
Five years after the enabling amendments were passed, the federal government rolled out for public comment in the Canada Gazette the Regulations Amending the Immigration and Refugee Protection Regulations (Administrative Penalties and Consequences).
The proposed regulatory amendments published on Dec. 21, 2024, authorize the imposition of hefty monetary penalties for unauthorized practice or misrepresentation, along with other consequences — such as the public identification of individuals and businesses determined by officials of Immigration, Refugees and Citizenship Canada (IRCC) to have engaged in such violations.
Those determined by an investigating IRCC official to have committed a “violation” will have a limited right to present evidence and challenge the determination before reviewers (Cabinet appointees yet-to-be hired) with a possible independent review (with leave) by the Federal Court.
The proposed AMPs — which start at a $15,000 baseline penalty amount for a misrepresentation that is determined to be a violation — escalate cumulatively, taking into account multiple or prior violations, the financial advantage to the lawyer, and the impact of the violation.
AMPs are capped at $1.5 million per IRCC notice of violation.
The new administrative penalties regime would apply to the country’s approximately 12,000 regulated immigration consultants and an untold number of unauthorized consultants within and outside Canada, as well as to members of provincial or territorial law societies or the Chambre des notaires du Québec, who provide paid advice or representation on immigration or citizenship matters.
The government decided to include legal professionals, notwithstanding vigorous representations from all legal regulators, the Canadian Bar Association (CBA) and the immigration and refugee bars asking that legal professionals be exempted from the AMP regime on legal, constitutional and fairness grounds, as well as for practical reasons, such as expense and unnecessarily duplicative regulation.
The move sparked considerable pushback from members of the immigration and refugee bars (see dozens of comments appended to the IRCC’s regulatory impact analysis statement here).
Law360 Canada asked IRCC detailed questions about the government’s intentions but did not get answers to: whether legal professionals will be exempted from the AMP regime; what is the anticipated timing for the AMPs to come into force; and whether the government is open to considering an alternative proposed by Federation of Law Societies of Canada (FLSC) of entering into arrangements with legal regulators to facilitate IRCC referring complaints about suspected misrepresentation by licensed legal professionals to law societies for appropriate discipline.
The immigration department told Law360 Canada it needs more time to provide requested information on how many legal professionals the government believes have been involved in clients’ misrepresentations as compared to the incidence of misrepresentations by authorized and unauthorized immigration consultants.
“We continue to review stakeholder feedback,” IRCC spokesperson Jeffrey MacDonald told Law360 Canada by email. “Any change to the draft regulations, as well as their coming into force, will be communicated publicly.”
IRCC declined to comment on most elements of the extensive submissions to the government from the federation on behalf of Canada’s 14 legal regulators, as well as from the law societies of Ontario, B.C. and Newfoundland and Labrador, the CBA, the Canadian Immigration Lawyers Association (CILA), and the Canadian Association of Refugee Lawyers (CARL).
All of the legal groups wrote IRCC objecting to applying the proposed AMP regime to legal professionals, voicing many common practical, legal and constitutional concerns.
Among the legal organizations’ expressed objections and flaws they contend mar the proposed regime in its application to legal professionals:
- IRCC’s proposed broad powers to inspect and search, based on an IRCC officer’s determination that there are “reasonable grounds to suspect” a violation, and to demand documents from lawyers, without safeguards, as well as the lack of any mechanism to allow lawyers to fully and effectively defend themselves, without breaching established principles of solicitor-client confidentiality;
- unfairness, expense and other negative impacts on legal professionals, and the risk of inconsistent results by needlessly subjecting them to dual regulation;
- failure to respect the fundamental principles of independence of the bar as well as solicitor/client privilege/confidentiality, which are protected by the common law and the Constitution;
- the lack of procedural protections and accountability;
- IRCC’s lack of neutrality vis-à-vis immigration and refugee lawyers who advocate for clients, often in opposition to IRCC and its counsel, including representing in court those accused of offences, including misrepresentation. “Granting the same entity the authority to discipline the very lawyers who challenge it creates a glaring conflict of interest — comparable to allowing Crown counsel to oversee the discipline of criminal defence lawyers,” the CBA asserts in its submission to IRCC; and
- Ottawa exceeds federal jurisdiction by purporting to regulate and penalize lawyers and paralegals doing paid immigration and refugee work, including by naming violators and publishing particulars on IRCC’s website, an interference with a lawyer’s ability to practise law, which is the exclusive preserve of law societies.
Alluding to the latter point, MacDonald told Law360 Canada, “IRCC aims to establish a regime that is both effective and appropriately scoped, ensuring alignment with existing legal frameworks.”
“The regime would not be designed to preclude law societies from taking their own disciplinary action for the same conduct,” he explained. “The administrative penalties and consequences regime and the disciplinary processes of provincial law societies are considered complementary but distinct. Importantly, the . . . regime does not have the authority to impact a lawyer’s right to practise law, which remains solely within the jurisdiction of law societies.”
Sujit Choudhry, Haki Chambers
“If promulgated, it is inevitable that they will be challenged in the courts,” Choudhry wrote in a Jan. 24, 2025, letter on behalf of his client, to then-federal ministers of immigration and justice Marc Miller and Arif Virani.
“The legally prudent course would be for the Regulations to exempt the legal profession from their scope,” Choudhry advised the incumbent Liberal government (which operates now in “caretaker” mode, pending the April 28, 2025, federal election and the swearing-in of a new cabinet).
According to Choudhry’s legal opinion, the legal and constitutional flaws in the proposed regulatory amendments that apply the AMP regime to legal professionals include the invasion of the provinces’ and territories’ jurisdiction over the legal profession and the provision of legal services, via “a parallel regulatory process for the legal profession regarding advice on IRPA- and Citizenship Act-related matters.”
In an interview, Choudhry suggested that, arguably, “if the federal government has the authority to create what is, in substance, a scheme of professional regulation for lawyers practising in one area of federal law, there’s no legal bar to them doing so in more areas of federal law — for that matter, in every area of federal law.”
This raises the spectre (as others argue as well) of future AMP regimes being applied to lawyers practising in such federal legal spheres as criminal, tax, environmental and competition — a potential “massive intrusion on the authority of provinces to regulate the legal profession,” Choudhry said.
Barbara Jo Caruso, Corporate Immigration Law Firm
“The timing is uncertain because of the election,” she said.
The rationale for including immigration lawyers in the AMP regime is premised on the assumption that they are a significant contributor to clients’ misrepresentations to IRCC but “there’s really no evidence of that,” Caruso told Law360 Canada. “I think what lawyers are trained to do is to review the law and test the law — sometimes test the boundaries of the law and the interpretation of the law — and that doesn’t mean that we’re misrepresenting when we are advocating new Charter areas,” she said. “That is very much what lawyers are trained to do.”
(In a Feb. 3, 2025, submission to IRCC, the CBA stated that “a comprehensive review” of all reported case law involving misrepresentation offences under IRPA disclosed just two prosecutions of lawyers, and none for predatory conduct by immigration lawyers. By contrast, the case law revealed multiple prosecutions of problematic immigration consultants. Unauthorized immigration consultants, in particular, were often involved in lucrative schemes involving hundreds of clients, the CBA said.)
Caruso said she sees some parallel to the situation in the United States, where President Donald Trump issued a memorandum March 22, 2025, which accused the immigration bar at large, without evidence, of facilitating large-scale fraudulent asylum claims by their clients.
“I think the similarity in the U.S. is that immigration lawyers down there have been filing applications within the existing laws as they were,” she explained. “It doesn’t mean that they’re breaking the law or taking advantage of the law. They’re hired to advocate, and that’s what . . . they should be able to do freely, without fear of repercussion.”
Caruso said the expense, time and effort a lawyer would need to expend to comply with IRCC production demands and defend against IRCC allegations of misrepresentation, along with the risk of being hit with thousands of dollars in AMPs, could chill Canadian immigration and refugee lawyers.
“I think people are concerned that they may not be able to take on marginal cases, or cases that may require zealous . . . advocacy, for fear of being caught in the middle, because the time to . . . resolve and deal with [aspects of the AMP regime] . . . could impact their ability to service other clients.”
She noted most immigration and refugee lawyers practise as sole practitioners or in small firms, “so this type of additional administrative burden can really have a detrimental impact.”
“I don’t think anyone is signing off from being an immigration lawyer at this point,” she suggested, but they may be more selective about the cases they take given the risks posed by the planned AMP regime.
Aisling Bondy, Bondy Immigration Law
For refugee law practitioners, the government’s move is “very concerning” on multiple fronts, including because it could diminish access to justice for vulnerable refugee claimants, Bondy said.
“It can already be very challenging for refugee claimants with low income or limited funds to find a lawyer through Legal Aid because there’s just not enough lawyers taking refugee claims through Legal Aid for the number of claimants,” Bondy explained.
“And now, if on top of it there’s this risk of lawyers facing an administrative monetary penalty, it could dissuade even more lawyers from entering this field [of law] and taking files on legal aid, which could create an even larger access to justice issue for refugee claimants.”
Bondy added that the proposed AMP regime could have a “chilling effect” on lawyers who robustly represent their clients, including putting forward cutting-edge legal positions. “If you’re trying to assert your client’s rights, . . . and the [IRCC] officer says, ‘I think you brought a meritless argument,’ . . . ‘meritless’ can mean different things to different people,” she observed. “If it’s a novel argument, someone could say that’s meritless, when in fact it’s a novel argument.”
The way IRCC handled the rollout of the proposed regulations last December and the department’s recent limited consultations with bar organizations, but going back to the enactment of the enabling IRPA amendments in 2019, also left lawyers with a bad taste.
CILA “was so shocked” when IRCC published the proposed regulation, with an accompanying statement asserting that the Federation of Law Societies of Canada, the association of all legal regulators in Canada, “was consulted in August 2024 regarding the high-level concepts of the proposed APC regime and did not register any concerns,” Caruso said.
The federation immediately responded, calling the immigration department’s assertion “patently incorrect and deeply misleading,” and demanded that IRCC publicly issue a retraction (which the government has not done).
Teresa Donnelly, Federation of Law Societies of Canada
“Far from not registering any concerns, the federation has been and remains deeply concerned. It made lengthy and important submissions about potential regulations establishing an APC regime in 2019, and reminded the government of these submissions, and discussed them, in its last engagement with the government this past summer,” Donnelly said. “The government’s incorrect and misleading characterization of the federation’s position on this matter has been very damaging to the federation, its membership and its stakeholders. In the circumstances it is incumbent on the government to immediately retract its statement describing its consultation with the federation on this issue, and to do so publicly.”
In fact, over more than five years, the federation has raised many questions and concerns, on multiple occasions, about the government’s intentions with respect to an AMP regime, both in writing and in discussion with senior IRCC officials.
Like the CBA and immigration and refugee bar groups, the umbrella group for Canadian legal regulators wrote IRCC on Jan. 21, 2025, to state it remains “extremely concerned by the prospect of an APC regime that might apply to licensed legal professionals.”
In a Feb. 3, 2025, letter following up with Miller and IRCC’s Deputy Minister Harpreet Kochhar, Donnelly reiterated the federation’s “support for the government’s efforts to protect the public and ensure the effectiveness of Canada’s immigration, refugee and citizenship legal regimes and acknowledges the government’s efforts to advance these objectives through the proposed APC regime.”
However, the federation said its “real and substantial concerns that must be addressed” can be most easily and directly addressed by exempting licensed legal professionals from the proposed regime.
The FLSC said the government could enter into arrangements with law societies to establish a process whereby government officials could raise with law societies their concerns about the actions of licensed legal professionals, with regulators undertaking to investigate those complaints and, where appropriate, discipline those concerned.
“We are awaiting formal reply to our letters,” FLSC spokesperson Giulia Doyle said.
The government describes the proposed regulatory amendments as “crucial steps towards enhancing the integrity of the immigration system and more effectively safeguarding the interests of those seeking to navigate it.”
The amendments designate unauthorized practice and misrepresentation as “violations” of the regulations. The proposed AMPs escalate cumulatively for multiple violations, capped at $1.5 million, per notice of violation.
The baseline penalties for the two types of violations are significant: $15,000 for misrepresentation and $5,000 for representation or advice without authorization.
Aggravating factors that bump up the baseline AMPs include: a representative’s previous non-compliance history; the amount of any “financial advantage” the representative gained “as a result of committing a violation;” and the “inducing [of] an error in the administration of the relevant Act by causing an application to be approved when it otherwise would not have been.”
There are also monetary penalties for those who fail to comply with an IRCC officer’s demand for “relevant documents . . . to verify compliance.”
The AMPs are payable within 30 days after receipt of the notice of violation, unless the person has agreed on a payment plan with IRCC within 30 days.
An IRCC officer who has “reasonable grounds to believe” that a person committed a violation would have the authority to issue a notice of preliminary finding, specifying relevant details, including the reasons for the finding and the proposed AMPs.
After having considered any information submitted by the targeted lawyer in response, the officer would have the authority to issue a notice of violation, if they determine, “on a balance of probabilities” that a person committed a violation.
A proposed review process indicates that a legal professional who received a notice of violation could, within 30 days of receiving the notice, make a written request “for a review of the facts of the violation or of the amount of the penalty, or both, instead of paying the administrative monetary penalty.”
The review would be conducted by a governor-in-council appointee who would determine whether the lawyer was liable for the violation and the amount of the penalty, based only on information that was available to the officer who issued the notice, i.e., reviewers are barred from considering any new information.
Judicial review would lie to Federal Court, with leave.
Consequences for those found to have violated the regulations would include IRCC publishing on its website their names and business information, as well as the nature of the violation(s) and the AMPs imposed, with a view to “reinforce compliance and motivate behavioural change” and to “increase public awareness of non-compliant or unethical individuals,” according to IRCC’s regulatory impact analysis statement.
Last January, before the public consultation period finished, IRCC posted a (since-archived) job advertisement on the GIC appointments website, seeking applications for the planned part-time IRCC reviewer post. The job was to pay $350 to $400 per day.
IRCC was to review applications for the reviewing post on Jan. 20, 2025. “A degree in law would be considered an asset,” the ad said, as would knowledge of the relevant statutes and their regulations and “knowledge of the process, legislation and regulations governing the provision of immigration and citizenship representation or advice for consideration.”
If you have any information, story ideas or news tips for Law360 Canada, please contact Cristin Schmitz at cristin.schmitz@lexisnexis.ca or call 613-820-2794.
CORRECTION: This story misspelled Sujit Choudhry’s surname in several references, which has been corrected. We apologize for the errors.