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Paramountcy - Conflict. Caruso v. Law Society of Ontario
In Caruso v. Law Society of Ontario (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, here brought against the dismissal of an application "for declarations that “licensed paralegals in Ontario are authorized to provide immigration legal services in accordance with section 91(2) of [IRPA], including assisting clients in preparing and completing applications under [IRPA] and any of [its] associated Regulations”.
The court considers (and dismisses) the possibility of conflict wrt LSO By-law 4 ['Licensing'] and IRPA provisions regarding immigration consultants, here finding that both provincial and federal legislatures share jurisdiction under the constitutional 'double aspect' doctrine:B. Did the Divisional Court err in failing to find that By-Law 4 must be interpreted consistently with federal legislation to provide broad authority to paralegals to provide immigration and refugee services?
[74] Both provincial governments and the federal government have jurisdiction under the Constitution Act, 1867, relating to legal representation in immigration matters: Law Society of British Columbia v. Mangat, 2001 SCC 67, [2001] 3 S.C.R. 113, at paras. 34, 38, 42 and 46-47. Provincial jurisdiction is provided by s. 92(13) (property and civil rights) and possibly by s. 92(14) (the administration of justice): Mangat, at para. 46. Federal jurisdiction derives from s. 91(25) (naturalization and aliens). In areas of concurrent jurisdiction such as this, both jurisdictions can legislate relating to the same subject pursuant to the double aspect doctrine, so long as the legislation does not conflict: Mangat, at para. 23. If it does conflict, the provincial legislation will be constitutionally inoperative pursuant to the paramountcy doctrine: Mangat, at paras. 74-76.
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a. Identifying conflicts
[80] A conflict triggering the doctrine of paramountcy can arise in two ways. First, there can be an “operational conflict” where it is impossible to comply with both the federal law and provincial law simultaneously because one of the enactments says “yes” and the other says “no”. Alternatively, there will be a conflict where “imposing an obligation to comply with provincial legislation would in effect frustrate the purpose of a federal law”: Murray-Hall v. Quebec (Attorney General), 2023 SCC 10, [2023] 1 S.C.R. 367, at para. 84.
[81] Of importance, courts should not be quick to find that there is a conflict. The burden of proof in establishing a conflict is a “high one”: Murray-Hall, at para. 85. Courts should seek to achieve “co-operative federalism”, by accepting harmonious readings of federal and provincial statues that operate in areas of concurrent jurisdiction where possible: Reference re Pan-Canadian Securities Regulation, 2018 SCC 48, [2018] 3 S.C.R. 189, at para. 17.
b. The decision in Mangat does not govern
[82] Mr. Caruso relies upon the Mangat decision to support his position that By-Law 4 creates division of powers problems. In my view the Mangat decision does not assist his position.
[83] Mr. Mangat was a non-lawyer working as an immigration consultant in British Columbia for a fee. The Law Society of British Columbia sought to enjoin him from being paid for providing those services, alleging that he was violating the prohibition in s. 26 of the Legal Profession Act, S.B.C. 1987, c. 25, against non-members of the Law Society practicing law. Gonthier J. held for a unanimous court that s. 26 was inoperative notwithstanding that both British Columbia and the federal government had concurrent jurisdiction to legislate relating to the provision of legal services for a fee in immigration matters. He found that there was a conflict between the two statutes, rendering the British Columbia statute inoperative under the paramountcy doctrine: Mangat, at paras. 72-76.
[84] Although the legal principles it identifies are relevant here, the holding in Mangat does not govern this litigation directly. All of the legal services that Mr. Mangat provided related exclusively to IRB refugee hearings, including representation and litigation advice, and the preparation of litigation documents. This, of course, is advocacy work that would be permissible for paralegals under Ontario’s By-Law 4. Gonthier J. was careful to confine the application of the Mangat decision, given the narrow range of legal services that Mr. Mangat provided. He cautioned, that “[o]ther services related to immigration were not in issue in this case and so this judgment should not be interpreted as granting a broad right to practise law in all matters concerning aliens and immigrants without being a member of the Law Society”: Mangat, at para. 32. Therefore, the holding in Mangat does not assist Mr. Caruso’s submissions.
[85] In any event, the federal legislation at issue in Mangat was materially amended after the decision was rendered. Mangat focused on the impact of ss. 30 and 69(1) of the Immigration Act, R.S.C. 1985, c. I-2, which provided in material part that a person “with respect to whom an inquiry [by an adjudicator] is to be held” has the “right to obtain the services of a barrister or solicitor or other counsel and to be represented by any such counsel at the inquiry” for a fee (emphasis added).[15] Gonthier J. interpreted “other counsel” as meaning “non-lawyers”: Mangat, at para. 55. Section 26 of the Legal Profession Act of British Columbia conflicted with this federal provision because it purported to prohibit other counsel, who were not barristers or solicitors, from undertaking such representation for a fee.
[86] After Mangat was decided, IRPA was enacted. In isolation, s. 167(1) provides the same broad right to be represented by counsel as the Immigration Act did.167 (1) A person who is the subject of proceedings before any Division of the Board and the Minister may, at their own expense, be represented by legal or other counsel. [Emphasis added.] [87] However, ss. 91(1) and (2) were added to IRPA, and on any reasonable reading, they materially limit the right of representation by non-lawyers to regulated paralegals or immigration consultants. Put otherwise, they describe and limit the “other counsel” who are permitted to provide representation. I will reproduce these provisions for convenience:Representation or advice for consideration
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 the submission of an expression of interest under subsection 10.1(3) or a proceeding or application under this Act.
Persons who may represent or advise
(2) A person does not contravene subsection (1) if they are
(a) 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 Chambre des notaires du Québec;
(b) any other member in good standing of a law society of a province or the Chambre des notaires du Québec, including a paralegal; or
(c) a member in good standing of the College, as defined in section 2 of the College of Immigration and Citizenship Consultants Act. [Emphasis added.] [88] It is the underlined words in s. 91(2)(b) that address representation by Ontario paralegals.
c. IRPA and By-Law 4 do not conflict
[89] In my view, even leaving aside considerations relating to co-operative federalism and the heavy burden on those who claim jurisdictional conflict, it is obvious that there is no conflict between By-Law 4 and IRPA, ss. 91 and 167(1).
[90] Section 167(1) creates the right of persons to be represented in proceedings by “other counsel” or non-lawyers in IRPA matters. But as I have explained, the right to be represented by “other counsel” is restricted in s. 91 in all IRPA matters to non-lawyers whose legal work is regulated. This is the clear purpose of s. 91. It was enacted in the wake of Mangat, which like Pointts before it, raised public interest issues by permitting paid representation by unregulated non-lawyers.
[91] The federal government initially attempted to regulate IRPA legal services through IRPA regulations. In 2004, it passed Regulations Amending the Immigration and Refugee Protection Regulations, S.O.R./2004-59, which created the profession of licensed immigration consultants who would be the sole non-lawyers providing legal services in immigration and refugee matters. This regulatory scheme was put on a statutory footing through Bill C-35[16], which was passed in 2011 after a 2008 House of Commons Standing Committee report, “Regulating Immigration Consultants” confirmed that there were continuing problems with unregulated non-lawyers providing immigration and refugee services. The initial draft of Bill C-35 would have confined representation to lawyers, federally regulated immigration consultants and Quebec notaries, excluding paralegals entirely. But as described, the LSO, the only Canadian law society which regulates paralegals, lobbied to add licensed paralegals. Bill C-35 was amended, producing what is now s. 91(2)(b) of IRPA.
[92] This history confirms that paralegals were added to the list of authorized representatives because they were perceived to be adequately regulated by the LSO. This was the heart of the LSO submission before the Standing Committee made by Treasurer Pawlitza in 2010, which evidently prevailed. When Bill C-35 was introduced by federal Minister of Immigration Jason Kenney, he said, “[T]he government proposed the recognition of paralegals regulated by a law society” and added, “By recognizing the ability of law societies to govern their members in the public interest, such recognition could help protect would-be immigrants”: House of Commons Debates, 40-3, No. 112 (7 December 2010), at p. 6883.
[93] I do not accept Mr. Caruso’s position that this history confirms that Parliament intended to create an affirmative right to retain paralegals to perform all legal services relating to matters that are administered through IRPA. As the Divisional Court recognized, this history shows that through this legislation “Parliament demonstrated its intention that such paralegals would be regulated by the provincial law societies”. The text of s. 91(2)(b) confirms this as well. It permits paralegals to provide legal services only if “in good standing of a law society of a province”. In effect, through this provision Parliament has delegated the regulation of IRPA legal services by paralegals to law societies.
[94] I also agree with the Divisional Court’s conclusion that Parliament demonstrated an intention “that such paralegals would … comply with their regulatory requirements.” Applying the grammatical and ordinary meaning of the terms “in good standing of a law society of the province” interpreted in the context of s. 91 and IRPA as a whole, a paralegal who is exceeding their regulatory authority by providing legal services they are not licensed to provide is not complying with their regulatory requirements and therefore is not in good standing.
[95] Permitting paralegals to do so would also defeat the purpose of confining legal services to non-lawyers who are regulated. The training that paralegals receive is doubtlessly linked to the activities they are permitted to undertake. If paralegals are permitted to provide legal services that they are not licensed to provide and not trained to perform, in contravention of the restrictions imposed by the regulatory body relied upon to protect the public interest, it would destroy the purpose of s. 91 of ensuring that non-lawyers providing legal services in IRPA matters are regulated.
[96] I am therefore satisfied that there is no operational conflict between IRPA and By-Law 4. Instead, IRPA effectively incorporates the limits imposed in By-Law 4 by leaving it to the LSO to regulate paralegals who provide IRPA services. Moreover, complying with By-Law 4 would not create a conflict by frustrating the purpose of a federal law. As the Divisional Court found, “[w]here Parliament’s purpose is to restrict the provision of legal services to persons regulated by the provincial law society, regulation by the provincial law society is not incompatible with Parliament’s purpose. Indeed, regulation by the provincial law society is exactly what Parliament intended.”
Conclusion on Issue (b), the division of powers issue
[97] I would therefore find that the double aspect doctrine applies and that By-Law 4 can coexist with the material provisions in IRPA. Even if By-Law 4 was ambiguous, which it is not, the presumption of constitutionality does not apply. I would therefore deny this ground of appeal. . International Air Transport Association v. Canada (Transportation Agency)
In International Air Transport Association v. Canada (Transportation Agency) (SCC, 2024) the Supreme Court of Canada dismissed an appeal, here involving "the vires of the Air Passenger Protection Regulations, SOR/2019-150 (“Regulations”) [SS: under the 'Canada Transportation Act'], and the nature and scope of the “exclusivity principle” set out in Article 29 of the 1999 Convention for the Unification of Certain Rules for International Carriage by Air" [SS: the 'Montreal Convention'].
Here the court considers a legislative-treaty 'conflict', here in a regulation ultra vires inquiry:(1) What Constitutes a Conflict?
[92] In Thibodeau, this Court explained that[c]ourts presume that legislation passed by Parliament does not contain contradictions or inconsistencies and only find that they exist when provisions are so inconsistent that they are incapable of standing together. Even where provisions overlap in the sense that they address aspects of the same subject, they are interpreted so as to avoid conflict wherever this is possible. [para. 89] Thus, to find a conflict between the Montreal Convention and the impugned Regulations, the latter must be “so inconsistent with” the former that they are “incapable of standing together” (Daniels v. White, 1968 CanLII 67 (SCC), [1968] S.C.R. 517, at p. 526).
[93] The inquiry into whether one statute conflicts with another is distinct from the presumption that Parliament legislates in conformity with international law and “the rule of judicial policy that, as a matter of law, courts will strive to avoid constructions of domestic law pursuant to which the state would be in violation of its international obligations” (R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292, at para. 53). Where, as here, the treaty in question has been implemented in Canadian law, the test for statutory conflicts applies and there is no need to have regard to the presumption of conformity. . Canada (Attorney General) v. Monette
In Canada (Attorney General) v. Monette (Fed CA, 2024) the Federal Court of Appeal allowed a Crown JR, here from a CIRB decision involving the unpaid wage provisions of the Canada Labour Code.
Here the court notes a potential conflict of law:[22] However, the Board’s analysis does not consider the fact that Western Express deals with the application of two federal statutes. In the case at hand, it is the application of a provincial statute to a plan established by a federal statute. The analysis differs depending on whether two statutes passed by the same legislator can coexist without conflict or whether a provincial statute can supplement a federal statute if it is silent (see, in particular, Ruth Sullivan, The Construction of Statutes, 7th ed., Markham, ON, LexisNexis, 2022, § 11.03[4]; Canada (Attorney General) v. St-Hilaire, 2001 FCA 63, leave to appeal to the SCC denied, 28643 (November 29, 2001). The Board’s reasons do not make that distinction.
[23] Furthermore, the Board does not make any comparative analysis of the provisions at issue and, in particular, does not consider whether there are differences between section 119 of the CBCA and section 154 of the BCA. It is therefore difficult to understand how it could assimilate the two provisions and give them the same effect because although they are similar in several respects, there are differences between them.
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