Mangat and the Making of Canada’s Immigration Consulting Profession

Mangat reshaped immigration advocacy in Canada. The Supreme Court held that federal law permits non‑lawyer representation before the Immigration and Refugee Board of Canada (IRB) for a fee. Therefore, provincial bans could not block that choice. Consequently, the decision affirmed Parliament’s goal of accessible, informal, and speedy hearings. Moreover, Mangat set the stage for a distinct consulting profession.

Summary of the Mangat Decision

Mangat arose from a clash between federal and provincial regimes. The Immigration Act allowed “other counsel” before the IRB. However, the provincial law barred non‑lawyers from paid appearances. The Court found a true conflict of purposes. Therefore, federal paramountcy applied. The provincial prohibition became inoperative for IRB work. Moreover, the Court rejected interjurisdictional immunity. The case turned on pith and substance and paramountcy.

Mangat, The Key Terms

Before diving deeper, let’s review key constitutional terms that Mangat engages. This section explains each term and adds brief examples.

• Pith and substance identifies a law’s true subject. Courts assess purpose and effects. In Mangat, the provincial rule regulated lawyers. The federal rule governed IRB procedure and representation. Therefore, both schemes overlapped yet remained valid.
• Paramountcy makes valid federal law prevail in conflict. Two branches exist. Operational conflict involves impossible dual compliance. Frustration involves a provincial law that thwarts a federal purpose. Mangat applied frustration of purpose. Therefore, the federal scheme prevailed.
• Operational conflict arises when one law says yes and another says no. Compliance with one means defiance of the other. For example, one law requires a licence. Another law forbids that licence for the same activity. Therefore, true impossibility exists.
• Frustration of purpose arises when a provincial law thwarts a federal goal. Dual compliance remains possible in form, not in substance. Mangat illustrates this branch. The provincial ban undermined paid consultant representation before the IRB. Therefore, paramountcy removed the ban for IRB work.
• Intra vires means within legislative powers. Courts uphold such laws. For example, provinces regulate legal practice and education. However, those rules yield when paramountcy applies.
• Ultra vires means outside legislative powers. Courts strike such laws. For example, a province cannot enact criminal prohibitions. Therefore, such a statute falls outside provincial power.

The Issues in Mangat

The Court faced two clear issues. First, did provincial bans on paid non‑lawyer advocacy apply at the IRB. Second, if so, did federal law prevail through paramountcy. Moreover, should interjurisdictional immunity shield federal processes here.

The Most Notable Mangat Paragraph

The Court captured the core conflict in paragraph 72:

“In this case, there is an operational conflict as the provincial legislation prohibits non-lawyers to appear for a fee before a tribunal but the federal legislation authorizes non-lawyers to appear as counsel for a fee. At a superficial level, a person who seeks to comply with both enactments can succeed either by becoming a member in good standing of the Law Society of British Columbia or by not charging a fee. Complying with the stricter statute necessarily involves complying with the other statute. However, following the expanded interpretation given in cases like M & D Farm and Bank of Montreal, supra, dual compliance is impossible. To require “other counsel” to be a member in good standing of the bar of the province or to refuse the payment of a fee would go contrary to Parliament’s purpose in enacting ss. 30 and 69(1) of the Immigration Act. In those provisions, Parliament provided that aliens could be represented by non-lawyers acting for a fee, and in this respect it was pursuing the legitimate objective of establishing an informal, accessible (in financial, cultural, and linguistic terms), and expeditious process, peculiar to administrative tribunals. Where there is an enabling federal law, the provincial law cannot be contrary to Parliament’s purpose. Finally, it would be impossible for a judge or an official of the IRB to comply with both acts. This case should be distinguished from 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), [2001] 2 S.C.R. 241, 2001 SCC 40. In that case, it was possible to comply with the federal, provincial, and municipal statutes or regulations without defeating Parliament’s purpose. As previously shown, in this case, it is impossible to comply with the provincial statute without frustrating Parliament’s purpose.”

This paragraph triggers federal paramountcy by finding an operational conflict. It also secures paid non-lawyer IRB representation. It explains Parliament’s access goals for tribunal proceedings, which later shaped consultant regulation.

The Decision and Why Mangat Matters

The Court applied a careful path. First, it analyzed pith and substance. The provincial law regulated the legal profession. However, federal law sets IRB procedure and representation. The two schemes overlapped. Nonetheless, dual compliance would frustrate the federal purpose. Therefore, paramountcy applied. The provincial ban lost force for IRB appearances. Moreover, the Court declined interjurisdictional immunity. The ordinary paramountcy analysis resolved the case. Consequently, Mangat affirmed a permissive federal scheme for non‑lawyer advocacy at the IRB.

Mangat and the Creation of the Profession of Immigration Consulting

Mangat validated non lawyer advocacy before the Immigration and Refugee Board of Canada, IRB. Consequently, consultants gained recognition in federal hearings. Moreover, the decision spurred policy work on regulation.

In 1995, a House committee urged regulation. In 2002, the Minister formed an advisory committee. Later, in May 2003, the committee recommended a self regulating body. Finally, in October 2003, the Government announced the Canadian Society of Immigration Consultants, CSIC. CSIC began operating soon after, and was recognized in regulations in 2004.

CSIC regulated members at arm’s length. However, concerns grew about governance and enforcement. In 2008, the House of Commons Standing Committee on Citizenship and Immigration (CIMM) issued a critical report. It flagged ghost consultants and weak discipline.

Parliament then amended section 91 through Bill C-35. The 2011 changes criminalized paid advice by unauthorized persons. They also empowered the Minister to designate a regulator. Therefore, Ottawa could replace CSIC if needed.

In March 2011, the Minister proposed a new regulator. In June 2011, Bill C-35 came into force. The Government then designated the Immigration Consultants of Canada Regulatory Council, ICCRC, by regulation. ICCRC replaced CSIC as the regulator.

Nonetheless, structural problems persisted. In 2017, CIMM urged a statutory college. The Government responded through the 2019 budget bill. Parliament enacted the College of Immigration and Citizenship Consultants Act in 2019. The Act came into force in 2020. In 2021, ICCRC continued as the College. The College opened on November 23, 2021.

Today, section 91 fully recognizes College licensees. The statute names members of the College as authorized along with lawyers and certain other groups.

Since Mangat, the profession has matured. Education now includes a graduate diploma program. Queen’s University and Université de Montréal launched programs in 2021. Discipline powers and oversight have expanded. Therefore, the College of Immigration and Citizenship Consultants, CICC, regulates with a statutory mandate. Nonetheless, Mangat remains the constitutional anchor.

Future Citations of Mangat

Courts have repeatedly cited Mangat. They use it to explain paramountcy, pith and substance, and representation rules. Below are key decisions, with paragraph numbers and quotes.

Canadian Western Bank v. Alberta

Mangat guides the frustration branch of paramountcy. The Court wrote, at para 101, “A classic example of a provincial law that frustrates a federal purpose is Mangat.” Therefore, courts treat Mangat as the leading frustration case. Moreover, the Court favoured ordinary analysis over immunity.

Quebec, Attorney General, v. Canadian Owners and Pilots Association

The Court set out the two branches of paramountcy. At para 64, it stated, “Claims in paramountcy may arise from two different forms of conflict. The first is operational conflict between federal and provincial laws, where one enactment says “yes” and the other says “no”, such that “compliance with one is defiance of the other”. In Bank of Montreal v. Hall, … [the Court] identified a second branch … in which dual compliance is possible, but the provincial law is incompatible with the purpose of federal legislation … see also Law Society of British Columbia v. Mangat … at para. 72 … Federal paramountcy may thus arise from either the impossibility of dual compliance or the frustration of a federal purpose.” Therefore, COPA links Mangat to the purpose branch.

Caruso v. Law Society of Ontario

The Court explained how s. 167(1) of IRPA permits broad representation before the IRB. At para 47, it stated, “Section 167(1) is presently considered to permit representation by broad categories of individuals, including friends, relatives and immigration consultants who are not lawyers.” The Court then summarized Mangat’s core holding. At paras 55 and 56, it quoted the Mangat reasoning and confirmed that dual compliance was impossible in purpose. Moreover, at para 94, the Court stated, “Mangat falls into the second branch of paramountcy cases in which dual compliance is possible, but the provincial law is incompatible with the purpose of the federal legislation.” Finally, at paras 95 to 96, the Court stressed that frustration requires clear proof of federal purpose.

Law Society of Manitoba v. Pollock

The Manitoba Court of Appeal limited Mangat to IRB appearances. At para 30, it wrote, “Mangat is distinguishable, as there the federal enactment permitted representation before the IRB by persons who were not lawyers or otherwise regulated, but the enactment now at issue only refers to “barristers and solicitors.” Therefore, provinces may regulate other legal services.

Canada, Attorney General, v. Brown

The Federal Court applied Mangat’s purpose analysis to IRB representation. At para 16, it stated, “As found in Mangat, the purpose was to allow persons other than attorneys to represent clients before the IRB for a fee.” Therefore, Mangat continued to guide tribunal representation disputes.

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Citing All Cases In The Article

• Law Society of British Columbia v. Mangat, 2001 SCC 67, [2001] 3 SCR 113.
• Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 SCR 3.
• Quebec, Attorney General, v. Canadian Owners and Pilots Association, 2010 SCC 39, [2010] 2 SCR 536.
• Bank of Montreal v. Hall, 1990 CanLII 157 (SCC), [1990] 1 SCR 121
• Caruso v. Law Society of Ontario, 2023 ONSC 6744.
• Law Society of Manitoba v. Pollock, 2008 MBCA 61.
• Canada, Attorney General, v. Brown, 2005 FC 1683.