Getting Results for the Bar

OBA-Recommended Amendments Adopted

Working with government and the standing Committee on Justice Policy the OBA identified four elements of Bill 49, the Ontario Immigration Act that were of significant concern to Immigration Lawyers specifically and to the bar more broadly.

The OBA appreciated the opportunity to work with government and the Standing Committee on these issues and we thank them for their thoughtful approach to the concerns raised by the bar.  

The OBA met with government, provided a written submission and appeared at the Standing Committee on Justice Policy.  The OBA was instrumental in achieving reform on all four of its areas of concern:

1. There were provisions in the original bill that permitted warrantless inspections of law offices and threatened privilege. The OBA advocated for:
   1. the elimination of the warrantless inspection of law firms;
   2. explicit language to protection of privilege; and
   3. recognition that searches of law firms must be carefully tailored

   Result: The warrantless inspection of law firms has been eliminated, privilege explicitly protected in the bill and there was a recognition that search warrants executed on law firms would have to respect conditions in the warrant;

2. Absolute liability penalties existed in the original bill. The defences of due diligence and honest and reasonable mistaken belief of fact were explicitly made unavailable.  The OBA indicated that, in this context, absolute liability was contrary to principles of fundamental justice, inappropriate and would deter participation in the program.

   Result: The absolute liability provisions of the bill have been eliminated and the defences of due diligence and honest, reasonable and mistaken belief will be available for the administrative penalties under the Act, if passed. 

3. The OBA made a recommendation to protect self-regulation.  There was a provision in the bill that could have been interpreted to delineate who could practice law in Ontario. The OBA, as well as the Law Society, advocated for a clarification to ensure that decisions about who could practice law in Ontario would remain the purview of the independent regulator.

   Result: Changes have been made to the bill to clarify that the question of who may practice in Ontario would be determined by the Law Society Act and applicable federal legislation. 

4. The bill originally provided an overly broad discretion for decision-makers to reject applications despite the fact that the application complied with the provisions of the legislative scheme. We suggested the discretion in this provision was so broad as to violate the rule of law.

   Result: The provision will be amended to help ensure that decision makers act reasonably and we will continue to work with government to ensure that the factors to be considered by decision makers will be transparent to the profession and the public. 

Click here to find excerpts from the bill, as amended by the Standing Committee on Justice Policy to address the OBA concerns

The OBA extends special thanks to members of the OBA Citizenship and Immigration Law Section Executive, Marvin Moses (Chair) and Robin Seligman (a past chair) as well as Jason Kuzminski from the OBA Public Affairs Committee, who appeared at the Standing Committee on April 16, 2015.