FINAL EXAM ICL 820
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FINAL EXAM ICL 820 (Modules 4 – 6)
Module 4 – Conflict of Interest
A conflict of interest is a situation in which your duty of loyalty to the client or the representation of the client can be adversely affected by your own interest or your duties to another client (i.e., current, former, or joint) or a third person.
The
Code of Professional Conduct
prohibits advising or representing parties with actual or even potential conflicting interests in an immigration matter unless, after adequate disclosure to each party, all parties consent in writing. Even with consent, there are circumstances in which proceeding with representation despite a conflict is not possible or advisable.
Accordingly, checking for, identifying and avoiding conflicts of interest and ensuring that a client’s confidential information is protected are essential parts of every immigration practice.
Conflicts must be identified and addressed at the start of every new client relationship, as well as monitored over the course of a relationship. Even a perceived conflict is sufficient to impede the relationship and violate your duties under the
Code of Professional Conduct
.
146 ETHICS AND PROFESSIONAL PRACTICE FOR PARALEGALS 7. Safeguards: Protect personal information against loss or theft; safeguard the information from unauthorized access, disclosure, copying, use, or modification; protect personal information regardless of the format in which it is held. 8. Openness: Inform your customers, clients, and employees that you have policies and practices for the management of personal information; make these policies and practices understandable and easily available. 9. Individual access: When requested, inform individuals if you have any personal information about them; explain how it is or has been used and provide a list of any organizations to which it has been disclosed; give individuals access to their information; correct or amend any personal information if its accuracy or completeness is challenged and found to be deficient; provide a copy of the information requested, or reasons for not providing access, subject to exceptions set out in section 9 of the Act; note any disagreement on the file and advise third parties where appropriate.
10. Challenging compliance: Develop simple and easily accessible complaint procedures; inform complainants of avenues or recourse, including your organization’s own complaint procedures and those of industry associations, regulatory bodies, and the Privacy Commissioner of Canada; investigate all complaints received; take appropriate measures to correct information handling practices and policies. PIPEDA does not apply
to an employee’s name, title, business address, or telephone number, or to other employee information gathered by organizations engaged in commercial activity in the private sector. However, you may wish to review your employment privacy practices and to consider including employees in your privacy policy. Conflicts of Interest (Rule 3.04; Guideline 9) General Rule 1.02 defines “conflict of interest” as the existence of a substantial risk that a paralegal’s loyalty to or representation of a client would be materially and adversely affected by the paralegal’s own interest or the paralegal’s duties to another client, a former client, or a third person. The risk must be more than a mere possibility; there must be a genuine, serious risk to the duty of loyalty or to client representation arising from the retainer. Guideline
9 comments: 2. The duty to avoid conflicts of interest is found in Rule 3.04(1) and (2). 3. A conflict of interest exists when there is a substantial risk that a paralegal’s loyalty to or representation of a client would be materially and adversely affected by the paralegal’s own interest or the paralegal’s duties to another client, a former client, or a third person. A “substantial risk” is one that is significant and plausible, even if it is not certain or even probable that it will occur. There must be more than a mere possibility that impairment will occur. Copyright © 2020 Emond Montgomery Publications. All Rights Reserved. CHAPTER 4 Duty to Clients
147 A paralegal shall not act or continue to act for a client where there is a conflict of interest, except as permitted by Rule 3.04.66 A paralegal shall not advise or represent opposing parties in a dispute.67 A dispute is an argument or disagreement between two or more persons in which the interest of one side is adverse to the interest of the other side. A paralegal cannot act for opposing parties in a dispute, because to do so would impair the paralegal’s judgment on behalf of and loyalty to one or both parties. To Whom Is the Duty Owed? You owe the duty of avoidance of conflicts of interest to all clients, including former clients and prospective clients. Guideline 9 comments: 4. Rule 3.04 protects the duties owed by paralegals to their clients and the paralegal–client relationship from impairment as a result of a conflicting duty or interest. A client’s interests may be seriously prejudiced unless the paralegal’s judgment and freedom of action on the client’s behalf are as free as possible from conflicts of
interest. A paralegal owes the duty of avoiding conflicts of interest to all clients, including prospective clients. A paralegal should identify potential conflicts of interest at the first contact with a prospective client. A prospective client can be described as one who has consulted with a paralegal or paralegal firm to see if the firm will take on his or her matter or to see if he or she would like to hire the paralegal or firm. • • • 7. In addition to the duties of representation arising from a retainer, the law imposes other duties on the paralegal, particularly the duty of loyalty. The duty of confidentiality, the duty of candour and the duty of commitment to the client’s cause are aspects of the duty of loyalty. The rule protects all of these duties from impairment by a conflicting duty or interest. Conflicts of interest can arise in many different sets of circumstances. Guideline 9 comments: 8. Examples of conflicts of interest include: personal interest conflicts, current client conflicts, former client conflicts and conflicts arising from duties to other persons. Personal Interest Conflicts 9. A paralegal’s own interests can impair client representation and loyalty. This can be reasonably obvious, for example, where a paralegal is asked to represent a
client in respect of a matter in which the paralegal, the paralegal’s partner or associate or a family member has a material direct or indirect financial interest. Another example of a personal interest conflict is a close personal relationship, sexual or otherwise, with a client. dispute an argument or disagreement between two or more parties in which the interest of one side
is adverse to that of the other side 66 Rule 3.04(1). 67 Rule 3.04(2). Copyright © 2020 Emond Montgomery Publications. All Rights Reserved. 148 ETHICS AND PROFESSIONAL PRACTICE FOR PARALEGALS Current Client Conflicts 10. Duties owed to another current client may also impair client representation and loyalty. Representing opposing parties in a dispute provides a particularly stark example of a current client conflict. 11. A bright line rule has been developed by the courts to protect the representation of and loyalty to current clients. Subject to certain limited exceptions, the bright line rule holds that a paralegal cannot act directly adverse to the immediate legal interests of a current client, without the client’s consent. Paralegals should assume that matters undertaken against a current client are directly adverse to the immediate legal interests
of that current client and that the bright line rule ordinarily applies because of the nature of paralegal practice. Former Client Conflicts 12. Duties owed to a former client can impair client representation and loyalty. Conflicts Arising From Duties to Other Persons 13. Duties owed to other persons can impair client representation and loyalty. Paralegals should carefully consider the propriety, and the wisdom, of “wearing more than one hat” at
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the same time. The Rule 1.02 definition of “client” includes a client of the firm of which the paralegal is a partner or associate, whether or not the paralegal handles the client’s work. Guideline 9 comments: 15. Since every
client of a paralegal firm is also the client of every other paralegal employed
at the firm, if one paralegal in the firm has a conflict of interest in a matter, then all paralegals in the firm have a conflict in that matter. As a result, when checking for conflicts, the paralegal should review the names of all current and former clients of the firm and not just the clients personally served by the individual paralegal. Managing Conflicts of Interest How do you find out whether a conflict of interest may exist in respect of a particular
client or a particular client matter? Guideline 9 comments: 5. Conflicts of interest may arise at any time. A paralegal should use a conflicts checking system to assist in managing conflicts of interest. The paralegal should examine whether a conflict of interest exists not only at the outset, but throughout the duration of a retainer because new circumstances or information may establish or reveal a conflict of interest. A conflicts checking system is a searchable database of information about prospective, current, and former clients, as well as information about related persons and opposing or adverse parties. The database should include fields for the following information (the list is not exhaustive): • client’s name, and aliases and former names, if applicable; • client contact information; • date the file was opened; Copyright © 2020 Emond Montgomery Publications. All Rights Reserved. CHAPTER 4 Duty to Clients
149 • client file name and active file code; • subject matter of the file; • date the file was closed, and closed file code; and • names and contact information of related persons, and of conflicting or adverse parties (if available), cross-referenced to the client file. The database may be maintained in a paper or electronic format. Some legal software applications automatically enter client and other data into a conflicts database as new client matters are opened. As part of your conflicts checking system, you should have standard office procedures in place for conducting a conflicts search at critical points in the paralegal–client relationship. Your first search should take place after the initial contact with a prospective client. You should search for conflicts again when you have more information about the client and about related or adverse parties. If a retainer is entered into, you should consider conducting a conflicts search any time a new party is added in a proceeding. If a conflict arises after you are retained, you may be required to withdraw from representing the client. Conflict of Interest: Client Consent (Rules 3.04(3)-(5)) Rule 3.04(1) states that “[a] paralegal shall not act or continue to act for a client where there is
a conflict of interest, except as permitted under this rule.” In limited circumstances, you are permitted to act or continue to act for a client where
there is a conflict of interest if you obtain the client’s consent to do so. Rule 3.04(3) states: (3) A paralegal shall not represent a client in a matter when there is a conflict of interest unless (a) there is consent which must be fully informed and voluntary after disclosure from all affected clients; and (b) the paralegal reasonably believes that he or she is able to represent each client without having a material adverse effect upon the representation of or
loyalty to the other client. Rule 1.02 states that “consent” means fully informed and voluntary consent after disclosure: (a) in writing, provided that
where more than one person consents, each signs the same or a separate document recording the consent, or (b) orally, provided that each person consenting receives a separate written communication recording their consent as soon as practicable. Disclosure If you have considered the nature of the conflict and have reasonably concluded that you are able to represent the client without such representation having a material adverse effect upon your representation of or loyalty to the other client or clients, you may accept the retainer if all affected clients consent.68 68 Rule 3.04(3)(a). Copyright © 2020 Emond Montgomery Publications. All Rights Reserved. 150 ETHICS AND PROFESSIONAL PRACTICE FOR PARALEGALS Guideline 9 comments: 16. Disclosure is an essential element to obtaining a client’s consent and arises from the duty of candour owed to the client. The client needs to know of anything that may influence the paralegal’s judgment or loyalty. Once the paralegal has provided the client with all the details, the paralegal must allow the client time to consider them or to ask for further clarification. • • • 18. The client may only consent after being given all information required to make an informed decision. This is called informed consent. Disclosure is an essential requirement to obtaining a client’s consent and arises from the duty of candour owed to the client. … 19. Disclosure means full and fair disclosure of all information relevant to a person’s decision in sufficient time for the person to make a genuine and independent decision, and the taking of reasonable steps to ensure understanding of the matters disclosed. The paralegal should therefore inform the client of the relevant circumstances and the reasonably foreseeable ways that the conflict of interest could adversely affect the client’s interests. This would include the paralegal’s relation to the parties and any interest in and connection with the matter. Consent Your disclosure must provide sufficient detail about the conflict to enable the client to make an informed decision about whether retaining you
is in her or his best interest in the circumstances. When providing
disclosure, you must carefully consider your duty to other clients, and whether you can provide the disclosure required without breaching that duty. Guideline 9 comments: 20. Following the required disclosure, the client can decide whether to give consent. Factors to be taken into consideration may include the availability of another paralegal of comparable expertise and experience, the stage that the matter or proceeding has reached, the extra cost, delay and inconvenience involved in engaging another paralegal, and the latter’s unfamiliarity with the client and the client’s affairs. • • • 17. There may be situations where it is impossible for a paralegal to give a client or prospective client all necessary
information. This may happen when the details about the conflict involve another client or a former client. Since a paralegal cannot reveal confidential information regarding another client, the paralegal may only say that there is a conflict and that he or she cannot continue with or accept
the retainer. • • • 25. In some cases, the only way to deal with the conflict is to refuse to act. The paralegal may have to decline the retainer at the outset or may have to terminate the retainer and withdraw from representing the client at a later time. A paralegal may need to take this step even where the client wants the paralegal to accept the retainer, or to continue to act. Copyright © 2020 Emond Montgomery Publications. All Rights Reserved. CHAPTER 4 Duty to Clients
151 Independent Legal Advice In certain situations, the client’s informed and written consent is not enough to allow you to accept or continue in a matter. This may happen when the client is unsophisticated or vulnerable, or when the conflict is such that the client cannot possibly assess all of its possible implications without impartial, confidential, professional assistance. Guideline 9 comments: 22. … In some circumstances, the client must receive advice from an independent legal advisor regarding the matter or transaction before the paralegal may take any further steps in the client’s matter. 23. An independent legal advisor is another paralegal or a lawyer who can provide the client with independent legal advice. This advisor is unrelated to the client’s matter, associated parties or the paralegal. He or she is unbiased and objective and does not have a conflict of interest. Independent Legal Representation In situations where the conflict of interest is such that you must decline the retainer, you must advise the client to seek independent legal representation. Independent legal representation is legal advice and assistance from a competent paralegal or lawyer with no personal interest in the matter. Guideline 9 comments: 24. In circumstances where the paralegal is prohibited from acting for a client or prospective client, the paralegal must suggest that the individual
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obtain his or her own independent legal representation. Independent legal representation means that the individual has retained a legal representative, either a paralegal or a lawyer, to act as his or her own representative in the matter. This retained representative is objective and does not have any conflicting interest with regards to the matter. Consent—
Prospective Client Guideline 9 defines a prospective client as a person “who has consulted with a paralegal or paralegal firm to see if the firm will take on his or her matter or to see if he or she would like to hire the paralegal or firm.”69 At the initial consultation, certain information (such as the client’s name, including any aliases, and contact information) should be
obtained from the client and entered into your conflicts checking system. A conflicts search should be carried out before there is any further contact with the prospective client. The results of the search should be reviewed by
the paralegal. If the search reveals the existence of a substantial risk that your loyalty to or representation of a client would be materially and adversely affected by your own interest or your representation of or loyalty to another client, you must consider whether you should accept the retainer
or decline to represent the prospective client. When making this decision, you must consider whether, in the circumstances, you can comply with Rule 3.04(3), which requires you to obtain from all clients affected by the conflict consent that independent legal advice impartial, confidential advice obtained from a competent licensee with no personal interest in the matter; also called ILA independent legal representation legal advice and assistance from a competent paralegal or lawyer with no personal interest in the matter 69 Guideline 9, para 4. Copyright © 2020 Emond Montgomery
Publications. All Rights Reserved. 152 ETHICS AND PROFESSIONAL PRACTICE FOR PARALEGALS is fully informed and voluntary after disclosure; and it must be reasonable for you to conclude that you are able to represent each client without that representation’s having a material adverse effect upon the representation of or loyalty to the other client(s). CONFLICTS OF INTEREST: WHO IS THE CLIENT? Any person who is a client of the paralegal firm of which you are a partner or an associate is a client, regardless of whether you actually handle that person’s work.70 In a busy firm with many clients and/or a high client turnover, you may have no knowledge of a client’s existence or that your firm ever represented that client. Nevertheless, a paralegal–client relationship exists between you and
that client and entails various duties, including the duty of confidentiality and the duty to avoid conflicts of interest. Since every client of a paralegal firm is also the client of every other paralegal in the firm, if one paralegal has a conflict of interest in a matter, then all paralegals in the firm have a
conflict of interest in that matter.71 This means that when you check for conflicts, you must search the names of all current and former clients of the
firm, not just the clients you personally have represented in the past or currently represent. BOX 4.9 Conflict of Interest—Prospective Client Declines the Retainer If, having reviewed the disclosure provided, the prospective client declines to retain you, you should confirm the client’s decision in a non-engagement letter. The nonengagement letter should recommend that the client obtain legal advice and assistance through independent legal representation from a competent licensee with no personal interest in the matter. See Appendix 3.3 for a sample non-
engagement letter to a prospective client who has declined to retain you based on a conflict of interest. Conflict of Interest—Paralegal Declines to Represent Prospective Client Guideline 9 notes that there may be situations in which the only way to deal with a conflict is to refuse to act. This may occur when you cannot provide adequate disclosure because of your duties to other clients, or where it is not reasonable for you to conclude that you are able to represent the prospective client without that representation having a material adverse effect upon your representation of
or loyalty to other client(s). You should confirm your decision to decline the retainer in writing in a nonengagement letter. The non-engagement letter should recommend that the client obtain independent legal representation. See Appendix 3.4 for a sample non-engagement letter to a prospective client where the paralegal has declined the retainer based on a conflict of interest. 70 Rule 1.02, at “client.” 71 Guideline 9, para 15. Copyright © 2020 Emond Montgomery Publications. All Rights Reserved. CHAPTER 4 Duty to Clients
153 Conflict of Interest—Existing Client Existing client matters should be checked for conflicts at critical points throughout the paralegal–client retainer. You should conduct a conflict search any time a new party is added or new information about the client matter comes to light. If a conflict arises after you are retained, you may be required to withdraw from representing the client. If a conflict search reveals a conflict or potential conflict in an existing client matter, you must provide disclosure of the conflict to the client, and you must consider whether or not to continue to act in the matter, having regard to Rules 3.04(1), (2), and (3)(b) and to Guideline 9. Conflict of Interest—Existing Client Terminates Retainer
If, having reviewed the disclosure provided, an existing client decides to terminate the retainer, you should confirm the termination of the retainer in writing. If the client requests that the matter be transferred to another paralegal or a lawyer, you should obtain a direction, in writing and signed by the client, for release of the client’s file to the successor licensee. If the
client collects the file in person, you should obtain an acknowledgment in writing, signed by the client, confirming that the client has received the file. Conflict of Interest—Paralegal Withdraws from Representation of Existing Client If, having considered the nature of the conflict, Rule 3.04, and Guideline 9, you conclude that you must terminate the retainer and withdraw from representing an existing client, you must advise the client that there is a conflict of interest and that you must withdraw from representation. You should confirm your decision in writing to the client. When withdrawing your services, you shall comply with Rule 3.08. You must give the client notice that is appropriate to the circumstances, try to minimize expense and avoid prejudice to the client, and do all that can reasonably be done to facilitate the orderly transfer of the client matter to a successor licensee. Consent—Future Conflicts Guideline 9 suggests that a paralegal may be able to request that a client consent in advance to conflicts that might arise in future: 21. … The effectiveness of such consent
is generally determined by the extent to which the client understands the material risks involved. A paralegal may wish to recommend that the client obtain independent legal advice before deciding whether to provide consent. Advance consent should be recorded in writing. The commentary to Rule 3.4-2 of the Rules of Professional Conduct for lawyers72 elaborates
as follows: [4] … As the effectiveness of such consent is generally determined by the extent to which the client reasonably understands the material risks that the consent entails, 72 Supra note 10. Copyright © 2020 Emond Montgomery Publications. All Rights Reserved. 154 ETHICS AND PROFESSIONAL PRACTICE FOR PARALEGALS the more comprehensive the explanation of the types of future representations that might arise and the actual and reasonably foreseeable adverse consequences of those representations, the greater the likelihood that the client will have the requisite understanding. A general, open-ended consent
will ordinarily be ineffective because it is not reasonably likely that the client
will have understood the material risks involved. If the client is an experienced user of the legal services involved and is reasonably informed regarding the risk that a conflict may arise, such consent is more likely to be effective, particularly if, for example, the client is independently represented by other counsel in giving consent and the consent is limited to
future conflicts unrelated to the subject of the representation. Conflicts of Interest Arising from Personal Relationships (Rule 3.04(1)) There is nothing
in the Rules that prohibits a paralegal from providing legal services to family members or friends. You have the same obligations to a client who is
a friend or family member as you do when representing other clients,
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including the duty to avoid existing or potential conflicts of interest. If there is anything in your personal relationship with a friend or a family member who is a prospective client that may adversely affect your judgment on behalf of or loyalty to that person, you should consider declining the retainer. Guideline 9 comments: 47. A conflict of interest may arise when a paralegal provides legal services to a friend or family member, or when the client and the paralegal have a sexual or intimate personal relationship. In these circumstances, the paralegal’s personal feelings for the client may impede the paralegal’s ability to provide objective, disinterested professional advice to the client. Before accepting a retainer from or continuing a retainer with a person with whom the paralegal has a sexual or
intimate personal relationship, a paralegal should consider the following factors: • The vulnerability of the client, both emotional and economic; • The
fact that the paralegal and client relationship may create a power imbalance in favour of the paralegal or, in some circumstances, in favour of
the client; • Whether the sexual or intimate personal relationship may jeopardize the client’s right to have all information concerning the client’s business and affairs held in strict confidence. For example, the existence of
the personal relationship may obscure whether certain information was acquired by the paralegal in the course of the paralegal and client relationship; • Whether such a relationship may require the paralegal to act as a witness in the proceedings; • Whether such a relationship may interfere with the paralegal’s fiduciary obligations to the client, including his or her ability to exercise independent professional judgment and his or her ability to fulfill obligations to the administration of justice. 48. Generally speaking, there is no conflict of interest if another paralegal or lawyer at the
firm who does not have a sexual or intimate personal relationship with the client handles the client’s matter. Copyright © 2020 Emond Montgomery Publications. All Rights Reserved. CHAPTER 4 Duty to Clients
155 Outside Interests and Public Office (Rules 2.01(4), (5), 3.04; Guidelines 2, 9) A paralegal who engages in another profession, business, occupation, or
other outside interest, or who holds public office concurrently with the provision of legal services, shall not allow the outside interest or public office to jeopardize the paralegal’s integrity, independence, or competence.73 A paralegal shall not allow involvement in an outside interest or public office to impair the exercise of his or her independent judgment as a paralegal on behalf of a client.74 Guideline 9 comments: 49.
A conflict of interest may arise from the paralegal’s outside interests. Outside interests covers the widest possible range of activities and includes
those that may overlap with the business of providing legal services, as
well as activities that have no connection to the law or working as a paralegal. If a paralegal has other businesses or interests separate from his
or her paralegal firm, those interests may influence the way the paralegal serves clients. Whatever the outside interest, a paralegal must guard against allowing those outside interests to interfere or conflict with his or her duties to clients. (Also refer to Guideline 2: Outside Interests.) 50. If a paralegal is in public office while still providing legal services to clients, the paralegal must not allow his or her duties as a public official to conflict with his or her duties as a paralegal. If there is a possibility of a conflict of interest, the paralegal should avoid it either by removing himself or herself PERSONAL RELATIONSHIPS Fact Situation A year ago, you broke off a relationship with a man with whom you were sexually involved for over two years. You were never really committed to the relationship, and toward the end you became very impatient with his inability to make decisions and what you perceived as his manipulative behaviour and emotional dependency on you. When he began to pressure you to marry him, you ended the relationship. After you stopped seeing him, he phoned and emailed you frequently, promising to change whatever was wrong and asking to see you. You did not respond to his calls or emails, and after five or six months, they tapered off and finally ceased. Two days ago, your former partner contacted you at your firm. He assured you that his reasons for wanting to see you were purely professional—to consult with you about some problems he was having with his landlord. You suspect that this is just another ploy for getting back into your life. You would prefer to have nothing more to do with him. Question for Discussion Are you obliged to represent this client? BOX 4.10 73 Rule 2.01(4). 74 Rule 2.01(5). Copyright
© 2020 Emond Montgomery Publications. All Rights Reserved. 156 ETHICS AND PROFESSIONAL PRACTICE FOR PARALEGALS from the discussion and voting in the public capacity or by withdrawing from representation of the client. Guideline 2 comments: 3. It is the paralegal’s responsibility to consider whether the outside interest may impair his or her ability to act in the best interest of his or her client(s). If so, the paralegal must withdraw, either from representation of the client or from the outside interest. OUTSIDE INTERESTS You are a partner, along with two other paralegals, in a paralegal firm. You serve on the board of directors of a publicly funded community legal clinic that provides legal advice and services to people in the community who meet income and other criteria set
by the funding agency. Many of the clinic’s clients are residential tenants. The services provided by the clinic include summary advice and, in some cases, representation before the Landlord and Tenant Board. As a director,
your role is to review budgetary and administrative issues, as well as clinic outreach and other initiatives within the clinic mandate. You do not provide legal advice to the clinic. You are not privy to confidential information about individual client matters. One of your partners has several clients who are residential landlords. During a conversation with you, she mentions that she is going to be busy for the next few months dealing with multiple applications by tenants in a residential complex owned by one of her landlord clients, XYZ Properties Inc. The paralegal representing the tenants
is an employee of the legal clinic upon whose board you serve. “They’re asking for thousands of dollars in rent abatements for non-repair, breaches of the Fire Code, you name it,” your partner says. “My guy won’t be happy when he finds out you’re a director on their board. He’ll think it’s a conflict of interest.” “He’s your client, not mine,” you reply. “I don’t owe him anything. And I haven’t done anything wrong.” Questions for Discussion Is XYZ Properties Inc. your client? If yes, is there a conflict of interest? BOX 4.11 Acting Against Former Clients (Rules 3.04(2), (4)(a), (b)) A paralegal shall not advise or represent opposing parties in a dispute.75 Acting Against Former Clients in the Same or Related Matters (Rules 3.04(2), (4)
(a), (b)) Unless the former client consents, a paralegal shall not act against a former client in the same matter or a related matter.76 The client consent must be fully informed and voluntary after disclosure. It should be in writing or confirmed in writing. 75 Rule 3.04(2). 76 Rules 3.04(4)(a), (b). Copyright © 2020 Emond Montgomery Publications. All Rights Reserved. CHAPTER 4 Duty to Clients
157 You are prohibited from acting against a former client in the same matter because you possess confidential information about the client that is relevant to issues in the matter. Your duty to the former client requires you to hold that information in strict confidence. Your duty as legal representative to an adverse party in the same proceeding requires you to disclose that information for the adverse party’s benefit, to the possible detriment of your former client. The two duties conflict. A related matter is a matter involving issues that are similar or related to the issues in the original client matter. If you have acted for a client in a matter, you shall not, after that, act against the former client in a matter related to the client matter. You are prohibited from doing so because you possess confidential information about the former client from the original client matter that is relevant to issues in the related matter. Your duty to the former client requires you to hold that information in strict confidence. Your duty as legal representative to an adverse party in the related matter may require you to disclose that information for the benefit of the adverse party, to the possible detriment of the former client. The two duties conflict. Acting
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against a former client in the same or a related matter also raises issues about your loyalty to your clients. Acting Against Former Clients in New Matters (Rules 3.04(4)(c), (5)) Unless the former client consents, a paralegal shall not act against a former client in any new matter except as provided in subrule (5), if the paralegal has relevant confidential information
arising from the representation of the former client that may prejudice the client.77 Rule 3.04(5) states: (5) If a paralegal has acted for a client and obtained confidential information relevant to a matter, the paralegal’s partner or employee may act in a subsequent matter against that client, provided that: (a) the former client consents to the paralegal’s partner or employee acting; or (b) the paralegal’s firm establishes that it has taken adequate measures on a timely basis to ensure that there will be no risk of disclosure of the former client’s confidential information to the other licensee having carriage of the new matter. Guideline 9 recommends: 32. Even where the Rules do not prohibit a paralegal from acting against a client or former client, the paralegal should consider whether to accept the retainer (or continue acting). To act against a client or former client may damage the paralegal–client relationship, [and/or] result in court proceedings or a complaint to the Law Society. Joint Retainers (Rules 3.04(6)-(12); Guidelines 5, 9) A joint retainer is an arrangement whereby a paralegal agrees to represent two or more clients in the same matter. The clients in a joint retainer are called joint clients. 77 Rule 3.04(4)(c). Copyright © 2020 Emond Montgomery Publications. All Rights Reserved. 158 ETHICS AND PROFESSIONAL PRACTICE FOR PARALEGALS Guideline 9 comments: 27. Acting in a joint retainer places the paralegal in a potential conflict of interest. A paralegal has an obligation to all clients and in a joint retainer, the paralegal must remain loyal and devoted to all clients equally—the paralegal cannot choose to serve one client more carefully or resolutely than any other. If the interests of one client change during the course of the retainer, the paralegal may be in a conflict of interest. Before agreeing to a joint retainer, you must clearly identify the clients to whom you will be providing legal services, to ensure that you can fulfill your duties to them.78 You must carry out a conflicts search to ensure
that there are no conflicts of interest. You should determine who will provide you with instructions in the matter, and confirm the arrangement in the retainer agreement. Although the Rules do not require this, Guideline 9 recommends: 28. In cases where one of the joint clients is not sophisticated or is vulnerable, the paralegal should consider the provisions of Rule 3.02(13) and (14) regarding clients under a disability. The paralegal
may want to recommend that the client obtain independent legal advice
prior to agreeing to the joint retainer. This will ensure that the client’s consent to the joint retainer is informed, genuine, and not obtained through coercion. Rule 3.04(6) states: (6) Before agreeing to act for more than one client in a matter or transaction, a paralegal shall advise the clients that, (a)
the paralegal has been asked to act for both or all of them; (b) no information received in connection with the matter from one client can be treated as confidential so far as any of the others are concerned; and (c) if a conflict develops that cannot be resolved, the paralegal cannot continue to act for both or all of them and may have to withdraw completely. If a paralegal has a continuing relationship with a client for whom the paralegal acts regularly, before agreeing to act for that client and another client in a matter or transaction, the paralegal shall advise the other client of the continuing relationship and recommend that the client obtain independent legal advice about the joint retainer.79 A continuing relationship is a paralegal–client relationship in which you act for the same client in several different matters or transactions over a period of time. A continuing client is a client for whom you act in several different matters or transactions over a period of time. If you have advised all joint retainer clients in accordance with Rules 3.04(6) and (7) and they are in agreement that you should act for them, you shall obtain their consent.80 Consent must be fully informed and voluntary after disclosure.81 continuing relationship a paralegal–client relationship in which a paralegal acts for the same client in several different
matters or transactions over a period of time 78 Guideline 5, para 4. 79 Rule 3.04(7). 80 Rule 3.04(8). 81 Rule 1.02, at “consent.” Copyright © 2020
Emond Montgomery Publications. All Rights Reserved. CHAPTER 4 Duty to Clients
159 Consent to a joint retainer must be obtained from each client in writing, or must be recorded through a separate written communication to each client.82 Contentious Issue (Rules 3.04(10)-(12)) Although all clients may consent to the joint retainer, you shall avoid acting for more than one client if it is likely that a contentious issue will arise between them or that their interests, rights, or obligations will diverge as the
matter progresses.83 Rule 3.04(11) states: (11) Except as provided by subrule (12) if a contentious issue arises between two clients who have consented to a joint retainer, the paralegal must not advise either of them on the contentious issue and the following rules apply: (a) The paralegal shall (i) refer the clients to other licensees for that purpose; or (ii) if no legal advice is required and the clients are sophisticated, advise them of their option to settle the contentious issue by direct negotiation in which the paralegal does not participate. (b) If the contentious issue is not resolved, the paralegal shall withdraw from the joint representation. If your clients
consent to a joint retainer and also agree that, if a contentious issue arises,
you may continue to advise one of them, and a contentious issue does arise, you may advise the designated client about the contentious issue. You shall refer the other client(s) to another licensee for that purpose.84 Unrepresented Parties (Rules 3.04(6)-(12), 4.05) When providing legal services, you may find yourself dealing with opposing parties or other individuals with an interest in the matter who are not represented by a paralegal or a lawyer. A conflict of interest may arise if the unrepresented person comes to believe that you are protecting her or his interests. Rule 4.05 states: 4.05 When a paralegal deals on a client’s behalf with an unrepresented person, the paralegal shall, (a) take care to see that the unrepresented person is not proceeding under the impression that his or her interests will be protected by the paralegal; and (b) make clear to the unrepresented person that the paralegal is acting exclusively in the interests of the client and accordingly his or her comments may be partisan. Making it clear to the unrepresented person that you are acting exclusively in the interests of your own client may require more than simply saying this to the unrepresented person. In some circumstances, it may be prudent to provide the unrepresented person with confirmation in writing. You will find an example of an “I am not your legal representative” letter in Appendix 3.5. 82 Rule 3.04(9). 83 Rule 3.04(10). 84 Rule 3.04(12). Copyright © 2020 Emond Montgomery Publications. All Rights Reserved. 160 ETHICS AND PROFESSIONAL PRACTICE FOR PARALEGALS Guideline 9 comments: 41. If an unrepresented person who is the opposite party requests the paralegal to advise or act in the matter, the paralegal is not permitted to accept the retainer. If the unrepresented party otherwise has an interest in the matter, such as a co-accused, the paralegal may be permitted to act, but should be governed by the considerations outlined in Rule 3.04(6)–(12) about joint retainers. Multi-Discipline Practice (By-Law 7, Part III; Rules 3.04(13), 8.01) A multi-discipline practice is a business arrangement that permits paralegal licensees to enter into a partnership or association that is not a corporation with non-licensees to provide to clients the services of a non-licensee who practises a profession, trade, or occupation that supports or supplements the provision of legal services.85 The paralegal licensee must have effective control over the provision of services by non-licensees to clients of the multi-discipline practice.86 Guideline 7 comments: 17. In a multi-discipline practice, a paralegal should
be particularly alert to ensure that the client understands that he or she is receiving legal services only from the paralegal. If advice or service is sought from non-licensed members of the firm, it should be sought and
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provided independently of and outside the scope of the retainer for the provision of legal services. A paralegal should also be aware that advice or services provided by a non-licensed member of the firm will be subject to the constraints outlined in the relevant By-Laws and Rules governing multidiscipline practices. One way to distinguish the advice or services of non-licensed members of the firm is to ensure that such advice or services is provided from a location separate from the premises of the multi-
discipline practice. A paralegal in a multi-discipline practice is required to assume complete professional responsibility for all business entrusted to him or her.87 In accordance with By-Law 7.1, Part I, and Rule 8.01(5), a paralegal in a multi-discipline practice shall ensure that non-licensee partners and associates comply with the Rules and with all ethical principles that govern paralegals in the discharge of their professional obligations. These professional and ethical duties include the duty to hold all client information in strict confidence and the duty to avoid conflicts of interest. Affiliations (By-Law 7, Part IV; Rules 1.02, 3.04(14)-(16)) A paralegal firm may form an affiliation with a non-legal entity whose members practise a profession, trade, or occupation that supports or supplements the paralegal’s provision of legal services (“affiliated entity”). An affiliation is considered to have multi-discipline practice a business arrangement that permits paralegal licensees to provide to clients the services of a non-licensee who practises a profession, trade, or occupation that supports or supplements the provision of legal services; also called MDP affiliation an arrangement whereby a paralegal services firm provides legal services to the public jointly with a non-legal entity whose members practise a profession, trade, or occupation that supports or supplements the paralegal’s provision of legal services
CODE PROVISIONS – CONFLICT OF
INTEREST
Section 1(2)(a) – Defines conflict of interest where your own private interest or a third party’s interest (e.g., your business partner) conflicts with the client’s interest
Section 1(2)(b) – Defines conflict of interest where the interests of other clients or former clients conflict with existing client interests
Section 5 – Duty of loyalty owed to each client, i.e., being committed to client’s cause
Section 5 – Duty to avoid conflicts of interest [as defined in s 1(2)]
Section 15(1) – Main rule regarding conflicts of interest – to avoid them
Section 15(1) – If cannot avoid the conflict, can manage it in some cases by disclosure to all parties and their written consent to provide services to both
Section 15(1) – “Subject to Section 16 to 18” means that sections 16, 17 or 18 will take precedence where they apply; in other words, disclosure and written consent will not suffice in situations described in sections 16, 17 or 18
Section 15(2)(a) – Disclosure and written consent will also not suffice where a reasonable person would think you cannot be objective regarding your client’s interest, or develop the necessary trust with the client
Section 15(2)(b) – Disclosure and written consent will not suffice where a reasonable person would think you would necessarily have to compromise the confidentiality of any client or former client
Section 16 – Unauthorized behaviours – the situations in (a) through (c) are banned, and cannot be consented to by the client
Section 16(1)(a) – No borrowing money from, or lending money to a client, directly or indirectly
Section 16(1)(b) – No additional services (employment; real estate) [but see 16(2)]
Section 16(1)(c) – No intimate relationships with the client for one year after services, unless it is your spouse or common-law partner (‘conjugal relationship for at least one year’)
Section 16(2) – additional transactions are permitted, despite16(2) if three conditions are met: the client consents; the terms are fair and
reasonable and the client obtained independent advice about the transaction
Section 17(1) – Employment recruitment services defined
Section 17(2) and (3) – Conditions applicable when the RCIC is advising or representing both the employer and foreign worker
Section 18(1) – Student recruitment defined
Section 18(2) and (3) – Conditions applicable when the RCIC is advising or representing both the education institution and the foreign
student
Section 35(1)(c) – Mandatory termination due to conflict of interest unless consent under section 15 is applicable and is obta ined
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JOINT RETAINER AGREEMENTS
6.1
Before agreeing to represent more than one Client in a matter, a Licensee shall advise the Clients that: (a) Clients being simultaneously
represented by a Licensee on a common matter should agree that the Licensee may share information among all Clients as required; and (b)
if a conflict between Clients develops and cannot be resolved, the Licensee cannot continue to represent all Clients, and may have to withdraw as the Client’s representative for one or all Clients.
6.2
If a Licensee has a continuing relationship with one Client for whom they act regularly before agreeing to act for that Client and another Client in a matter, the Licensee shall advise the other Client of
the continuing relationship.
6.3
Although all parties concerned may consent, a Licensee shall avoid acting for more than one Client if it is likely that an issue contentious between them will arise or their interests, rights, or obligations will diverge as the matter progresses.
6.4
Where there is more than one Client, both Clients must date and sign the Joint Retainer Agreement
MODULE 5 – Equity, Diversity, Inclusion and
Self-Care
This module is designed to equip you with an understanding of the
Code of Professional Conduct
and its application to complex, realistic scenarios, which include working with clients from diverse backgrounds and experiences, some of whom have experienced trauma. You will learn about
the concepts of equity, diversity and inclusion (EDI) and increase your cultural competence.
This understanding will provide a lens through which you will shape an individualized approach to working with each of your clients. EDI will come into play when you are representing members of the LGBTIQ2 community, victims and perpetrators of domestic violence, and clients with mental health and capacity issues.
You will learn that your role as a consultant is to set the parameters of the client relationship and take into account the needs and interests of your clients.
The module will also address self-care. It is intended to foster best practices for managing time, coping with stress, and using reflective practice, all of which will help you avoid breaches of your professional and ethical responsibilities.
CODE PROVISIONS – EDI
Section 8 – fostering a relationship of trust
Section 22(1)(d) – demonstrate cultural sensitivity in providing client services
Section 10 – no discriminatory practices in any aspect of work – incorporates
Canadian Human Rights Act
– where
the prohibited grounds of discrimination are found in section 3(1) and prohibited practices are defined in Part 1
SOGIESC. An acronym for sexual orientation, gender identity, gender expression and sex characteristics.
“Access to justice” generally refers to the principle that people should be able to exercise their rights under the law in an effective and timely way. However, the reality in Canada and around the world is that many people are unable to take advantage of their legal rights or benefits due to various barriers blocking them from doing so. This is true across all areas of law but may be even more pronounced in the immigration and refugee sector.
Improving access to justice (also called A2J) in the Canadian legal system has seen initiatives designed to provide court alternatives (such as mediation), improve legal aid coverage, lower professional fees through, for example, limited scope services, simplify legal language and procedures, use technology to reduce costs or facilitate self-help, and so on. These efforts have been led by non-profit organizations, community groups, law
schools, the Canadian Bar Association and the judiciary, most notably the former chief justice of the Supreme Court of Canada, Justice Beverly McLachlin, who was an early advocate of improving access to justice.
Watch this short video from the A2J Lab at Harvard Law School which explains the concept comprehensively; while not specifically about immigration and refugee law, it may inspire you to think about what access to justice might mean in our sector:
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Barriers to Justice for Immigrants and Refugees
In our field, many people experience difficulty obtaining a certain status, benefit or remedy they qualify for. This can be due to any number of barriers that prospective immigrants and refugees face in accessing legal assistance, including:
1. inability to pay professional fees, for example, to file a meritorious H&C case
2. inability to pay government fees, for example, to apply for citizenship or restore status
3. limited legal aid coverage, notably for refugee claimants
4. delays at tribunals such as the IAD and discipline bodies of professionals
5. language or cultural barriers
6. lack of proper accommodation of special needs by service providers, e.g., accessible offices
7. location barriers — communities with no access to relevant and affordable legal help
8. victimization by employers, for example, exploited caregivers
or migrant workers
9. incompetent or unethical services from professionals, despite being regulated
It is important to be aware of such barriers and how they can impede clients from exercising their rights and obtaining a status or benefit in the immigration system they may otherwise qualify for. How might an RCIC help provide greater access to justice to some of the above groups? For example, some professionals offer pro bono services in meritorious cases, for example assisting with Syrian or Afghan refugees or applying for citizenship for a family unable to apply due to costs.
Professionals can also adopt flexible payment policies that allow greater access to services, for example, smaller installment payments over a longer period of time to take a meritorious H&C
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case. Some professionals offer “unbundled services” which means limited assistance as needed for an otherwise self-
represented applicant in, for example, Express Entry. All of these
are in the best tradition of professionalism to expand access to services in creative ways to those who need them.
Examples of A2J Initiatives
The following reports illustrate some of the issues and work being done in Access to Justice in the immigration/refugee sector in Canada. It is not necessary to read these reports in full as they are lengthy, but read the abstract (summary) of each report to be aware of these samples of initiatives underway to provide greater access to justice:
Craig Damian Smith, Sean Rehaag & Trevor CW Farrow, "Access to Justice for Refugees: How Legal Aid and Quality of Counsel Impact Fairness and Efficiency in Canada's Asylum System" (2021) Can Forum on Civ Justice,
online
.
Halton Community Legal Services, "Newcomer Conversations: Learning Canadian Law" (last visited 16 November 2022),
online
.
Access to Justice and IRB Virtual Hearings
The IRB recently completed a study of the impact of virtual hearings on access to justice. Read the Executive Summary of the final report, especially Section 4 on “Findings and Recommendations”. Do these findings surprise you, or are they what you would expect?
Immigration and Refugee Board of Canada,
Report on the sense of access to justice associated with virtual hearings held before the IRB using MS Teams
(13 July 2022),
online
.
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MODULE 6 – INTERPRETERS / DIGITAL
WORLD
The IRB expect Interpreters to:
Be well prepared
Ensure fairness
Interpret accurately
Communicate properly
Respect the confidentiality of the IRB
Adopt a professional conduct
CODE PROVISIONS – INTERPRETERS
Section 22(1)(e) – retain interpreter/translator services when necessary
Section 22(4) – dealing with interpreters and translators
Section 24(3)(e) – disclosure of names of anyone assisting in the service agreement
CODE PROVISIONS – DIGITAL WORLD
22(1)(b) – conduct the client’s affairs in an efficient and cost-effective manner
19(2)(e) – deliver services using appropriate and effective technology
43 – public statements
44 – marketing
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45 – client endorsements
46 – logos
11 Tips to Success! 1. Brief the interpreter prior to a conversation. Familiarizing the interpreter with essential information like who, what, where, and why will give the session a more seamless and professional flow. Also, briefing the interpreter on any point that may be sensitive will allow the interpreter to provide the appropriate tone for such issues. 2. The interpreter is there to purely translate what is being said. Even when
the simplest questions are asked, a trained interpreter will not assume your
answer, or answer for you on your behalf. Your interpreter is a neutral presence providing communication and understanding, but is not meant to be involved in the conversation. 3. Ask interpreter not to change or alter any part of the conversation. A professional, trained interpreter will not alter the conversation. They are there to simply provide interpretation and understanding. If you are not used to working with an interpreter, understanding that the conversation is not being altered, but is a direct interpretation will help you to know that effective communication is taking place. 4. Speak clearly and in a normal tone. Your interpreter may be trained to work at a quick pace, but it is important for clarity and accuracy to speak clearly and slowly. Speaking too rapidly, not pausing, or being unclear may result in information having to be repeated or clarified. This tip for working with an interpreter ensures minimal delays and disruptions to the interpretation process. 5. Allow more time for interpreted communication. Sometimes with emergencies and last-minute meetings, time constraints may be a factor, but especially for meetings planned in advance, be sure to allow enough time for the interpretation process. Being rushed for time leads to ineffective communication in any setting, but when language barriers are involved, it is important to have the time to make sure everyone is understood.
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6. Be aware of cultural factors. When language barriers are present, there can also be cultural differences that may impede your meeting if you are not aware of them. Being prepared and understanding cultural differences will result in a more effective conversation and interpretation when working with an interpreter. 7. Refrain from using metaphors, acronyms, slangs or idioms. While your interpreter is knowledgeable of metaphors and slang which are used frequently, such cultural phrases may not translate well into the target language. You will want to use more plain language, except for industry-
related terminologies, such as business, finance, and medical terminology (as it relates). Use simple yet concise wording that will easily be translatable, making the process of working with an interpreter smooth and productive. 8. Remember to pause between sentences or complete thoughts. Try not to interrupt when the interpreter is translating and listen to the entire string interpretation before responding. Remembering this tip will allow the best use of time, complete expression, and minimize any redundancy, or having to re-explain. 9. Speak directly to the non-English speaker, not the interpreter. Remember, the interpreter is purely there to interpret for you and to provide
understanding, but they are not part of the conversation. Speak directly to the non-English speaker, and look at them (not the interpreter) in a face-to-
face or video remote meeting. 10. Treat the interpreter as a professional. Interpreters are trained professionals and treating them this way will make your client/patient feel at
ease with the conversation and give you the best results for effective communication. 11. Permit only one person to speak at a time. Make sure in a session with an interpreter that only one person is speaking and avoid interrupting. This can confuse the conversation, and take more time if things are needed to be repeated or re-explained. Remembering this tip will provide the most accurate interpretation and flow of conversation. Arming yourself with these
simple tips will help you communicate effectively and get the most out of working with an interpreter.
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INTERPRETER HANDBOOK
This handbook is a tool for interpreters who provide or show interest in providing services to the Immigration and Refugee
Board of Canada (IRB). It will give you basic information on the IRB environment and the role of the Interpreter at the IRB.
1.0 Introduction to the IRB and its Tribunal Processes
As an interpreter providing services to the IRB, it is important to understand the context of your work.
1.1 What is the Immigration and Refugee Board of Canada (IRB)?
The IRB is Canada's largest independent administrative tribunal. It is responsible for making well-reasoned decisions on immigration and refugee matters, efficiently, fairly and in accordance
with the law.
Immigration, Refugees, and Citizenship Canada
(IRCC) has the overall responsibility for immigration and refugee matters. IRCC determines claims for refugee protection made abroad at Canadian embassies and consulates. It is responsible for selecting immigrants, issuing visitors' visas, and granting citizenship. It is also IRCC that determines the eligibility of all refugee protection claims made in Canada and refers eligible claims to the IRB for a decision.
The
Canada Border Services Agency
(CBSA) is responsible for carrying out enforcement functions related to immigration and refugee matters. These include detention, removals, investigations, and intelligence and immigration control functions overseas.
The IRB reports to
Parliament
through the Minister of Immigration, Refugees and Citizenship but is independent from IRCC and the Minister.
All
IRB decisions
have an impact on the lives and security of the individuals appearing before the IRB. They contribute to the security of Canadians, the integrity of Canada's immigration and refugee systems, and the strength and diversity of our nation. Refugees and immigrants have always been part of Canadian history and will continue to help shape our future.
The IRB has four divisions:
1.
Refugee Protection Division (RPD) decides claims for refugee protection made by people
already in Canada.
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2.
Refugee Appeal Division (RAD) decides whether to allow or dismiss appeals of decisions made by the Refugee Protection Division (RPD).
3.
Immigration Appeal Division (IAD) decides appeals on immigration matters (removal orders, sponsorship and residency obligations).
4.
Immigration Division (ID) is responsible for conducting admissibility hearings and detention reviews
As an Interpreter, you may have the opportunity to provide your services for proceedings taking place before each of these divisions.
1.2 What is the tribunal process at the IRB?
Each division has its own mandate but they all follow an
administrative tribunal
process similar to what happens in a court, though less formal. This process is flexible as long as it ensures that the IRB makes well-reasoned, efficient and fair decisions.
In the tribunal process:
A person appearing before the IRB has the right to be represented, at his or her own expense, by counsel
- a lawyer, immigration consultant, trusted advisor or family member.
A person has the right to be heard and to present evidence and arguments to an impartial decision-maker.
Hearings are usually held in person, but they can also be held by videoconference, telephone or other means that allow for a fair hearing.
Proceedings may be in English or French and a person appearing before the IRB may also use an interpreter.
All testimony is given under oath (by swearing on a holy book) or by affirmation (a solemn promise to tell the truth).
The people who hear the cases and make the decisions are called members. In most cases, one member
hears the case.
Hearings of refugee claims are usually held in private.
Other hearings are usually open to the public. That means media or members of the public may observe hearings or get information about a case.
The setting and procedures for hearings are generally informal, so evidence is not limited by technical or legal rules.
Each division has rules on procedures. The rules cover matters such as time limits, evidence, documents and other responsibilities of counsel or the people appearing before the IRB.
All decisions are based on the evidence provided and the law.
Members must provide reasons for final decisions. The member will state them at the end of the hearing or, sometimes the member may write out the reasons for the decision later, after the hearing.
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For additional information on the IRB, please refer to the
IRB website
.
2.0 The IRB and Interpreters
2.1 When does the IRB require the help of interpreters?
Canadian law recognizes the right for everyone to a fair hearing. Therefore, the IRB provides interpretation for any party who does not understand or speak any of the two official languages used in IRB proceedings.
2.2 How can I provide interpretation services to the IRB?
To provide interpretation services to the IRB, you must successfully pass an accreditation test. Non-accredited interpreters may be retained in very exceptional circumstances and only where it is necessary to safeguard the fundamental rights of the subject of the proceedings. This may happen in cases where the individual appearing before the IRB only speaks a very rare language or dialect.
You must also consent to and pass a security screening.
2.3 What is the role of an interpreter at the IRB?
The role of an interpreter at the IRB is to provide a clear channel of communication between decision-makers and the individuals appearing before the IRB with culturally, linguistically diverse backgrounds.
In addition to overcoming the barrier of language between IRB decision-makers and IRB clients,
the interpreter plays a key role in helping the IRB perform its core mandate: making well-
reasoned decisions on immigration and refugee matters, efficiently, fairly and in accordance with
the law.
2.4 Is an interpreter an employee of the IRB?
No, an interpreter is
not
an employee of the IRB. An interpreter is an
independent contractor
called upon by the IRB on an "as-and-if needed" basis.
2.5 How are Interpreters scheduled?
Interpreter Units make every effort to ensure work is equally distributed to all the interpreters by language/dialects, while accommodating special situations, such as availability, language dialects, conflict of interest, etc.
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Interpreters are scheduled on an on-call basis and you may be booked for a hearing up to three weeks in advance. In the event of a last-minute request or a cancellation, you may be contacted for an assignment on the day of a hearing. In all cases, the Interpreter Unit will contact you to enquire about your availability. It is your responsibility to ensure that you confirm your availability with the Interpreter Unit. The Interpreter Unit, will in turn, provide you with the check-in time as well as the duration of the assignment.
You may be scheduled for a half day hearing beginning in the morning or beginning in the afternoon. The start time may differ depending on the IRB Division that you have been scheduled to appear before. In all circumstances, you must be present 15 minutes before the proceeding and you need to remain for the duration of the scheduled assignment unless otherwise
directed by the Decision-maker and/or the Interpreter Unit.
If you are unavailable for an assignment, you must contact the Interpreter Unit to cancel the booking no later than 48 hours prior to the date of the scheduled booking.
If your assignment is cancelled, the Interpreter Unit will advise you as soon as possible.
A contract with the IRB does not include a clause that guarantees a fixed or minimum number of times a contractor may be requested to provide services.
2.6 What type of interpretation will I conduct at the IRB?
You will interpret orally the entire dialogue and in some cases, short documents submitted before, during, or after IRB proceedings. You will have to interpret both from the language of the person who is the subject of the proceedings into English or French, and from English or French into the language of that person concerned, using
consecutive interpretation.
Whatever is said in one language should be interpreted faithfully and accurately into the other language using the exact equivalent meaning and structure.
2.7 What means of interpretation are used at the IRB?
Generally, all the participants in the process are
in the same room and in-person interpretation is used. However, sometimes you may be
required to interpret over the
telephone
or in the context of a
videoconference
.
2.8 How does it work to provide telephone interpretation for the IRB?
If you provide telephone interpretation, arrangements should be made for you to do it from an IRB office. When this is not possible, you may provide the service from your home. If it is conducted from your personal residence, you must ensure that:
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A land-line telephone is used; cellular phones are only permitted in exceptional circumstances and only with prior consent by the Division
. Should you use a cellular phone, please ensure that it is fully charged for the duration of the proceeding.
Others who may reside with you should not interrupt on the telephone line.
You are alone in a room in order to ensure the confidentiality of the proceeding and to minimize background voices that could distract other hearing participants.
Call-waiting is disabled.
It is possible that you may be interpreting in proceedings that are taking place in a different province and a different time-zone. You must take this into account when you accept to provide telephone interpretation services.
2.9 What is the context of interpretation at the IRB?
The IRB may need to retain your services in different settings: a RPD hearing, a RAD hearing, an IAD hearing, an ID hearing/review or in other situations where IRB personnel may need to speak with a subject of a proceeding. IRB proceedings may be non-adversarial, as is usually the case for RPD hearings, or adversarial in the case of ID, IAD and RAD hearings. An adversarial hearing involves opposing parties, where one is presenting against the case of the other. In a non-
adversarial hearing, there is no one presenting an opposing case.
The
Immigration and Refugee Protection Act
(
IRPA
), the
Balanced Refugee Reform Act
(
BRRA
) and the
Protecting Canada's Immigration System Act (PCISA)
are the statutes that govern the activities of the IRB although other statutes are also referred to. While certain terms within the Act may have a common meaning, in the context of this legislation they may have a more refined
legal meaning. We encourage you to refer to the
Acts
to appreciate the distinction.
a) Common procedures at IRB hearings
Hearings before the IRB usually last three hours or more.
The following is a basic outline of common procedures that you may encounter at a proceeding before the IRB. This is to be used as a guide only, since the order and content of the steps may vary at the discretion of the Member presiding at the hearing.
1.
All participants are identified.
2.
The interpreter is administered an oath or asked to confirm that an oath or an affirmation to interpret accurately was made at a previous IRB proceeding
3.
Interpreter and person appearing before the IRB are asked by the presiding member to confirm that they understand one another.
4.
The presiding member may deal with preliminary matters or ask counsel if there are any
preliminary matters to be discussed.
5.
The subject of the proceeding will be asked to make a solemn affirmation and will be examined by the presiding member, their counsel and then counsel for the Minister if the Minister is intervening
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6.
In adversarial hearings, the Minister will present evidence followed by the person concerned or his lawyer.
7.
Counsel will make legal submissions and make observations in his/her summation of the
case.
8.
At the end of the hearing the member may provide the decision orally or reserve their decision.
b) Alternative Dispute Resolution (ADR)
An ADR conference is a proceeding before the Immigration Appeal Division (IAD) that is different from a regular appeal hearing. It is an informal meeting between an Appellant and an official from Immigration, Refugees and Citizenship Canada (IRCC) who is referred to as Minister's counsel. An Early Resolution Officer (ERO) from the IAD assists the parties in an effort to resolve the case simply, quickly, and fairly. If the case is resolved through the ADR conference, a hearing is not required. An ADR conference normally takes approximately one hour to complete.
Outline of procedure of an ADR Conference
1.
The ERO will make an opening statement and give the parties further details about the process.
2.
The ERO and Minister's counsel will ask the Appellant some questions about his/her case and ask him/her to explain why he or she thinks that the appeal should be allowed.
3.
The ERO may meet separately with Minister's counsel and with the Appellant to specifically discuss whether the case can be resolved.
4.
The ERO may provide the Appellant and Minister's counsel with an opinion as to the strengths and weaknesses of the case.
5.
If Minister's counsel agrees that the appeal should be allowed, a Summary of Agreement will be prepared. A member of the IAD must approve each settlement. Once
approved, an order allowing the appeal will be issued. The case will then continue to be processed.
6.
If Minister's counsel does not agree that the appeal should be allowed, the Appellant will be given the choice of withdrawing the appeal or proceeding to a hearing.
7.
If the Appellant chooses to proceed to a hearing, the ERO will arrange for a hearing date.
c) Change date or time (CDT) hearing
Change Date and Time (CDT) hearings are proceedings that take place only at the RPD. These proceedings are used to decide on an application put forward by the claimant, his/her counsel, or the Minister's Counsel to change the date and time for a scheduled hearing. It is possible, on the day of, or prior to a scheduled hearing, that a claimant may apply for a CDT. In the situation that
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it is on the day of the hearing, the Coordinating Member will refer the application to a special CDT hearing for a decision on the application. As an Interpreter you maybe required to interpret
at the CDT hearing and if the application is not accepted, then proceed to interpret at the previously scheduled hearing.
d) Refugee Appeal Division
The Refugee Appeal Division (RAD) is responsible for reviewing the Refugee Protection Division (RPD) decisions and is independent from the RPD. The RAD may order oral hearings in certain circumstances when there is "new" evidence. At a RAD hearing, the appellant person who is the subject of the appeal, or other witnesses, may require an interpreter during the duration of the hearing. As an interpreter you will be scheduled to interpret the hearing.
3.0 Responsibilities of the Interpreters
The IRB expect Interpreters to:
Be well prepared
Ensure fairness
Interpret accurately
Communicate properly
Respect the confidentiality of the IRB
Adopt a professional conduct
3.1 Be well prepared
Before providing your services in an IRB setting, the IRB expects that you familiarize yourself with the terminology used during IRB proceedings. You are expected to take the time to review the
glossary
and translate the most commonly used words into the other language of interpretation. This familiarization will assist you in your work and increase your efficiency as you will more rapidly be able to find the precise word or term.
Individuals appearing before the IRB may have a sexual orientation or gender identity or expression (SOGIE) that does not conform to traditional norms. You should familiarize yourself with SOGIE terminology and language by reading the
Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression (
SOGIE
),
paying particular attention to Section 4 (Use of Appropriate Language) which highlights the importance of employing appropriate language and terminology when providing interpretation services in proceedings involving persons with diverse SOGIE.
You may use an ordinary dictionary, a legal dictionary, a calendar to convert dates from other countries and the
Interpreter Handbook
during the proceedings.
Persons appearing before the IRB may have experienced trauma. You should be aware and prepared for the fact that sensitive and emotional issues may arise during the proceeding.
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You may want to use a pen and paper to make notes to help you during the proceedings. However, at the end of the hearing, all material related to the proceedings must be left in the room and any notes you have made must be destroyed.
3.2 Ensure fairness
An Interpreter must be
objective and impartial
. Your role is to provide interpretation. You may not give advice or explanations to the person who is the subject of the proceedings. You must never, by your body language, indicate that you agree or disagree with the person's case. You must never favour one party. The IRB must be confident that you do not have a conflict of interest. You must disclose to the case management officer, the clerk or the presiding decision-
maker any real or potential conflict of interest you may have with the subject of the proceedings (see
Rule 4
of the
Code of Conduct
).
3.3 Interpret accurately
There is a legal obligation to interpret
exactly
what has been said. The precise communication of
the particular word or phrase used can be critical to a proper decision. Please take the time you need; it is more important to be accurate than to be quick.
Do's and Don'ts
Do's
Do:
Interpret only the words you have been asked to interpret - no more, no less
Do:
Interpret in the same person as the speaker. If a speaker says "I will", interpret it as
will" (NOT as "he/she will").
Do:
Inform the decision-maker if no direct interpretation for a word exists or if you can't remember the meaning of a word used.
Do:
Reflect exactly what is said.
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Do's and Don'ts
Do's
Do:
Correct yourself immediately if you realize that you have made a mistake or if a mistake is pointed out.
When interpreting for a person with diverse SOGIE, it is important not to make assumptions or rely on stereotypes and to remember that terms associated with diverse SOGIE do not always translate appropriately across cultures. It is important to rely on language that reflects the self-
identification of the person appearing before the board. Listen carefully to the language the person uses to describe themselves and their partners.
When possible while interpreting, translate the exact word the individual uses and do not use approximations. The most appropriate language to use is the chosen terminology, names, or pronouns requested by the individual concerned. If there is no exact translation, use
gender inclusive language
where possible, such as “spouse” or “partner.”
3.4 Communicate properly
Before the beginning of an IRB proceeding, take a moment to ensure that you can communicate with the person and vice versa, to ensure that both of you are satisfied that you understand each other. When the proceeding starts, the presiding decision-maker will ask you if this has been done.
If the person who is the subject of the proceeding does not understand a question asked during the hearing, advise the presiding decision-maker of the person's response, and the presiding decision-maker will provide instructions.
You should try to use the same tone and level of language as the person speaking. Adjust yourself to that person's style. You will have to control the person's flow of speech, possibly by hand signs; otherwise, you may have difficulty recalling everything that the person says. You may have to interrupt when a person talks for too long and explain that you need time to interpret
what has been said.
You may find it useful to take notes to help you remember the message of the speaker, including key words. It is a good practice to note names, dates and numbers because they can be easily forgotten or confused.
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3.5 Respect the confidentiality of the IRB
As an interpreter under contract with the IRB, you are bound by professional secrecy.
You cannot, within or outside the IRB, discuss any matter for which you provide services to the IRB.
3.6 Adopt a professional conduct
Each presiding decision-maker at an RPD, IAD, RAD or ID proceeding may have a slightly different style and may follow a different procedure. Always take instructions from the presiding decision-maker.
If any problems arise during the proceedings, advise the presiding decision-maker. You should also inform the Duty Desk, immediately following the hearing.
The IRB views it as improper and unprofessional for an interpreter to seek to withdraw from a hearing, particularly in mid-hearing, for any supposed reason of conscience; the interpreter's role is to interpret, not to judge.
If you find you are unable to properly interpret because of the dialectic or related difficulties, you must advise the presiding decision-maker.
If the proceedings are recessed, adjourned, postponed or concluded, you should go to the reception area or to the interpreters' lounge to wait for further instructions. You should always advise the hearing support assistant or the Duty Desk before leaving the premises.
If your interpretation is challenged by counsel or by the person who is the subject of the proceedings, you should be able to explain your choice of words if requested. In any event, abide
by the decision of the presiding decision-maker. Always inform the interpreter coordinator if your interpretation has been challenged.
The rules of conduct that the IRB expects the interpreter to follow are formally drafted in a
"code of conduct" that is part of the Interpreter's contract at the IRB.
4.0 What can the interpreter expect from the IRB?
You can expect the IRB to:
Treat you with respect.
Provide an environment free from bias and prejudice that allows you to provide high-
quality interpretation services.
Provide you with the necessary information and tools to prepare yourself for an IRB proceeding.
You can expect the IRB decision-maker to:
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Provide you with a short briefing about the subject matter of the proceeding and give you an opportunity to confirm the language/dialect to be interpreted.
Introduce you and all of the other participants at the proceeding.
Clearly explain the proceeding process and your role in it.
Allow health breaks during proceedings to enable interpreters to maintain high-quality standards at all times.
Not ask you to do perform other tasks other than providing interpretation services.
5.0 General Information
5.1 Dress appropriately
Your attire should be appropriate for a formal hearing and in keeping with the atmosphere of the hearing room.
5.2 End of Proceedings
Before leaving, check with the Duty Desk to ensure that your services are no longer required and
that your hours of work are properly recorded.
5.3 Provide updated Contact information
Always notify the Interpreter's Unit of any change of address, email and telephone number.
6.0 Other Participants at the proceedings
The following box contains a brief description of the roles of the various participants in an IRB proceeding.
Member (decision-maker)
The person who sits on the RPD, RAD, IAD or ID hearing and is responsible for making the decision, on the basis of the facts of the case and in accordance with the law.
Presiding member
The member appointed to chair an RPD, RAD, IAD or ID proceeding.
The presiding decision-maker (member) is responsible for procedural practice at the proceeding.
Coordinating Member
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The coordinating member is a decision-maker responsible for member management and
interlocutory decisions, including the applications submitted for change of date and time
on the day of the proceeding
Subject of the proceedings
The "person concerned" whose case is being considered at the proceeding. This person is the main witness and may be the only one called. It is of the utmost importance that the person concerned understands what is being said and that others understand him/her.
RPD: The person who claims Convention refugee status may be referred to as "the claimant".
The person who makes an appeal to the RAD may be referred to as "the appellant". The Minister may also be the appellant.
The person who makes an appeal to the IAD may be referred to as "the appellant". The Minister may also be the appellant.
The person who appears before the Immigration Division for an admissibility hearing or a detention review is referred to as "the person concerned".
Hearings officer/Minister’s Counsel
The party who represents the Minister of Immigration, Refugees and Citizenship Canada
and/or the Minister of Public Safety in matters before the ID, the IAD, the RPD or the RAD. Also known as the Minister’s counsel, the hearings officer is responsible for presenting the Minister’s case, call witnesses to the hearings before the divisions, examine and cross-examine witnesses, and may present documentary evidence.
Counsel
The person who represents the person concerned at an RPD hearing, a RAD hearing, an IAD hearing, an immigration admissibility hearing or detention review. Counsel may be a
lawyer, an immigration consultant, a friend or a relative or another person chosen by the person concerned to act on his/her behalf. Counsel may call witnesses, present evidence and make applications, objections and submissions.
Case management officer (CMO)/Case officer (CO)
An employee of the IRB who, while not necessarily present at the proceedings, is responsible for the administrative processing of cases.
Designated representative
The person designated by the member to act in the best interests of the person concerned when the person concerned is under the age of eighteen years or unable to
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appreciate the nature of the proceedings. The designated representative may make decisions that would otherwise be made by the person concerned.
Guardian (or parent)
A lawfully appointed person having the right and duty to make decisions for the person who is the subject of the proceedings where the person who is the subject of the proceedings is under the age of eighteen years or is mentally disadvantaged.
Witness
A person called upon to give evidence at the proceeding.
Observer
A person who is not taking part in the hearing but who may attend at the request of the person concerned, with permission. The presiding decision-maker may require an observer to leave if that person is likely to impede the proceedings. At RPD hearings, a representative of the United Nations High Commission for Refugees (UNHCR) has a right
to attend and observe. IRB representatives may also attend as non-public observers.
7.0 Key Resources and Exercises/Tips
7.1 Legal framework
The
Immigration and Refugee Protection Act
(
IRPA
) governs matters concerning immigration and refugee protection in Canada, including much of the work of the IRB. It came into force on June 28, 2002, replacing the previous
Immigration Act
. Since that time IRPA has been amended several times, the most recent changes made under the
Balanced Refugee Reform Act
(
BRRA
) and the
Protecting Canada's Immigration System Act
(
PCISA
).
7.2 IRB glossaries
As the IRB has some specific vocabulary, a
glossary
has been developed and is available on the IRB website. In addition, the Annex of this handbook contains a list of commonly used terms.
Some words and expressions are commonly used throughout the IRB, while some apply only to only one Division. Some words may be used either in their ordinary meaning or in a more legal or technical meaning in the context of the process.
As you become familiar with the new terminology, please look at the list of commonly used terms in the glossary toward finding the equivalent in your language of interpretation. You may even wish to consult with other interpreters who speak your language of interpretation and share your list with them.
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7.3 Exercises to improve your memory and sight translation skills
The following exercises are aimed at improving mental recall.
Exercise 1
Read a text. Repeat each sentence after having read it, without referring back to the text. It is easier if you can get someone else to read it to you.
Exercise 2
1.
Have someone read a sentence or two aloud to you from a newspaper or magazine at a normal speaking speed. (Have longer passages read to you as you improve.)
2.
Take notes.
3.
Repeat what you have just heard in the same language, using your notes and your memory.
4.
Analyze the results. Have you left anything out? Did you change anything? Attempt to find the reasons for any errors, so that you know what to watch for.
When you are comfortable doing exercises 1 and 2, try the exercise again, giving your interpretation in the other language.
It is worthwhile attending IRB hearings that are open to the public. You can practice noting the questions and the answers and then translating them in your head. This can help to improve your memory, allow you to pick up vocabulary that you will be required to translate and to assist in familiarizing yourself with IRB proceedings.
Do not practice a new note taking system while working in a proceeding. You should be comfortable with your system before attempting to make use of it while working.
Sight Translation
As an IRB interpreter, you may be asked to translate aloud a variety of documents for the tribunal. The most common of these documents are identification documents such as passports, drivers' licenses, national identification cards and birth certificates. You may also be asked to sight translate handwritten personal letters, newspaper articles, police or medical reports and other legal documents. In order to give as accurate and precise a translation as possible and depending on the size and complexity of the document, it is better to request a brief amount of time to review the document ahead of time in order to prepare a rough written translation and/or solve some translation problems beforehand.
The following exercise will help you improve your sight translation skills.
Exercise 1
Translate a short text orally. Practice until you can do this at a normal speaking speed. You should concentrate on giving an intelligible and accurate rendering of the text and not be satisfied until you have reached the stage where no one realizes you are translating.
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When practicing exercise 1, start with simple texts, using vocabulary with which you are familiar.
The best way to ensure that you will provide quality service as an interpreter is to practice. As an
independent contractor you may not be called by the IRB on a regular basis, so it is up to you to maintain your skills by practicing them on your own. The IRB values the work and high standard
of service that it has come to expect from its interpreters.
The IRCC has policies and procedures in place for the use
of interpreters by the IRCC staff. Contrary to the IRB proceedings, the IRCC provides an interpreter and pays for the interpretation services only in limited circumstances. E.g., refugee protection and select permanent residence applications:
On July 25, 2023, IRCC through a program delivery update introduced new procedures for visually authenticating interpreters to ensure integrity of operations both virtually and in-person. Staff must now confirm the identity of every interpreter through photo-
identification. The updated manual also speaks of the use of accredited interpreters being limited to interviews that could have a significant impact on the client, such as:
In-Canada claims for refugee protection, including refugee eligibility interviews
Interviews with individuals like to be subject of a removal from Canada
Pre-Removal Risk Assessment hearings
Interviews with victims of abuse
Sponsorship interviews
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Government of Canada,
"IRB Program Delivery Update: Visual Authentication of Interpreters" (25 July 2023),
online
:
Government of Canada.
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