CODE OF PROFESSIONAL CONDUCT PDF

CODE OF PROFESSIONAL CONDUCT FOR COLLEGE OF IMMIGRATION AND CITIZENSHIP CONSULTANTS LICENSEES INTERPRETATION GUIDE Version: 2022-001 Last Modified: October 27, 2022...

CODE OF PROFESSIONAL CONDUCT FOR COLLEGE OF IMMIGRATION AND CITIZENSHIP CONSULTANTS LICENSEES INTERPRETATION GUIDE Version: 2022-001 Last Modified: October 27, 2022 1/70 Code of Professional Conduct – Interpretation Guide 2022-001 | ©2022 Contents FOREWORD....................................................................................................................... 7 Characteristics of a profession......................................................................................... 7 Fundamental Principles Governing Conduct....................................................................... 8 Professional Behaviour.................................................................................................... 8 Duty of Good Faith......................................................................................................... 9 Integrity........................................................................................................................ 9 Objectivity...................................................................................................................... 9 Competence................................................................................................................... 9 Confidentiality................................................................................................................ 9 Principles Governing the Responsibilities of Firms.............................................................10 Application of the Code..................................................................................................10 INTERPRETATION.............................................................................................................12 Definitions.....................................................................................................................12 Conflict of Interest.........................................................................................................13 Purpose and Application.................................................................................................15 Purpose........................................................................................................................15 Application....................................................................................................................15 General Standards........................................................................................................15 Professional Conduct......................................................................................................15 Standards of Profession..................................................................................................15 Conduct unbecoming....................................................................................................16 Duty of loyalty...............................................................................................................17 Duty of honesty and candour.........................................................................................17 2/70 Code of Professional Conduct – Interpretation Guide 2022-001 | ©2022 Duty of civility...............................................................................................................18 Relationship of trust.......................................................................................................19 Compliance with applicable legislation............................................................................19 Discrimination..............................................................................................................20 Intimidation and coercion...............................................................................................21 Dishonesty, fraud or illegal conduct.................................................................................22 Inducement..................................................................................................................22 Non-application.............................................................................................................22 Fee...............................................................................................................................24 Original documents.......................................................................................................24 Client documents..........................................................................................................25 Conflicts of interest........................................................................................................26 Duty to avoid conflict.....................................................................................................26 Unauthorized behaviours................................................................................................27 Interpretation — paragraph (1)(b)..................................................................................28 Definition of employment recruitment services.................................................................28 Conflict of interest — employment recruitment services....................................................29 Conditions....................................................................................................................29 Definition of student recruitment services.........................................................................31 Conflict of interest — student recruitment services...........................................................31 Conditions....................................................................................................................32 Competence.................................................................................................................34 Competence and diligence..............................................................................................34 Nature of competence....................................................................................................34 3/70 Code of Professional Conduct – Interpretation Guide 2022-001 | ©2022 Obligation if not competent............................................................................................36 Requirements — services of another...............................................................................36 Maintaining competence.................................................................................................37 Delivering quality services..............................................................................................37 Actions taken when representing client...........................................................................39 Keeping client informed..................................................................................................39 Interpreter or translator.................................................................................................40 Relationship to Clients....................................................................................................41 Initial consultation.........................................................................................................41 Content of consultation agreement..................................................................................42 Copy of agreement........................................................................................................43 Service agreement.........................................................................................................43 Preconditions.................................................................................................................44 Content of service agreement.........................................................................................45 Copy of agreement........................................................................................................50 Amendments to agreement............................................................................................50 Non-application of sections 23 and 24.............................................................................50 Exemption from application of sections 23 and 24............................................................51 Opinion to be provided...................................................................................................52 Obligation of confidentiality............................................................................................52 Disclosure of confidential information..............................................................................52 Scope of disclosure........................................................................................................54 Complaints....................................................................................................................54 Errors or omissions........................................................................................................54 4/70 Code of Professional Conduct – Interpretation Guide 2022-001 | ©2022 Interpretation — liability insurance..................................................................................55 Fees.............................................................................................................................55 Disbursements...............................................................................................................55 Additional fees or disbursements.....................................................................................56 Unnecessary increases — fees or disbursements..............................................................56 Advance payments.........................................................................................................57 Invoice.........................................................................................................................58 Description of services and disbursements.......................................................................58 Receipt.........................................................................................................................58 Termination of service agreement...................................................................................58 Mandatory termination of service agreement....................................................................59 Dishonest or illegal conduct............................................................................................60 Referral to other licensee...............................................................................................60 Actions required — Actions completion or termination.......................................................61 Actions required — termination.......................................................................................61 Transfer of file...............................................................................................................62 Delay............................................................................................................................62 Office Administration and Management............................................................................63 Record keeping.............................................................................................................63 Compliance with Code....................................................................................................63 Professional responsibility...............................................................................................64 Delegation....................................................................................................................64 Relationship to the College and Other Persons.................................................................65 Mandatory reporting to College.......................................................................................65 5/70 Code of Professional Conduct – Interpretation Guide 2022-001 | ©2022 Response to the College.................................................................................................65 Communications with complainant..................................................................................66 Current clients...............................................................................................................66 Conduct of fellow licensee..............................................................................................66 Reportable conduct........................................................................................................67 Exceptions....................................................................................................................67 False, misleading or inaccurate public statement..............................................................68 Marketing of Immigration or Citizenship Consulting Services..............................................68 Marketing of services.....................................................................................................68 False, misleading or inaccurate representations................................................................69 Client endorsement........................................................................................................69 Identifying marks of College...........................................................................................69 Transitional Provision.....................................................................................................70 Inconsistency with Council by-laws and regulations..........................................................70 Establishment and Coming into Force..............................................................................70 Registration...................................................................................................................70 6/70 Code of Professional Conduct – Interpretation Guide 2022-001 | ©2022 Code of Professional Conduct for College of Immigration and Citizenship Consultants Licensees INTERPRETATION GUIDE This interpretation guide is intended to provide clarification and guidance, with reference to current best practices, to Regulated Canadian Immigration Consultants (RCICs) and Regulated International Student Immigration Advisors (RISIAs) (collectively licensees), on the Code of Professional Conduct for Licensees of the College of Immigration and Citizenship Consultants (Code, or Code of Professional Conduct). This guide should be read in conjunction with the Code. Note that guidance has not been provided for all Code provisions. Additional guidance may be developed and included herein in the future. FOREWORD This foreword sets out the fundamental principles of professionalism that underlie the provisions of the Code and govern licensees’ responsibilities to the public, to their regulator and to their colleagues. Professionals must understand the characteristics of a profession, and the requirements that professional status places on the professional. These requirements include both written rules that must be followed, and the behaviour and approach expected of those who provide professional services to the public. Characteristics of a profession Providing services for compensation does not, by itself, make one a “professional.” The concept of “professionalism” has been developed over time and is the subject of considerable legal scholarship, amplified and refined by court decisions. This work has identified the following characteristics that must be present before a vocation or calling can be considered a “profession”: Professionals acquire an identified skill through education and/or training; Professionals apply the skill through personal service to assist others (clients) for compensation; Professionals maintain an essential objectivity while providing services; 7/70 Code of Professional Conduct – Interpretation Guide 2022-001 | ©2022 Professionals accept that personal interests must be subordinate to client interests and the public interest generally; Professionals belong to an established professional body that sets and maintains standards for entry and membership in the profession, and assures the public of the continued competence of these individual professionals and the competence and ethical standards of the profession as a whole; and Professionals follow a code of ethical conduct, established and enforced by the professional body, having as its primary goal, the protection of the public. In addition to these characteristics, there is also an understanding and acceptance on the part of all professionals of an ongoing duty to promote and support the development of their profession and peers. The Code of Professional Conduct embodies the practical application of these fundamental characteristics of a profession and serves as a guide to the profession and as a source of assurance of the profession’s concern for the public it serves. Professionals voluntarily assume these ethical principles which are intended to protect the public and achieve orderly and courteous conduct within the profession itself. Fundamental Principles Governing Conduct The Code is derived from and promotes the following fundamental principles of professionalism: Professional Behaviour Public trust and respect are fundamental to a profession’s ability to serve the public. Therefore, licensees must act, at all times, in a way that will maintain this trust and respect. This includes treating members of the public, the regulator, and other licensees with courtesy, and avoiding public statements and actions that will reflect poorly on colleagues and the profession. Every licensed professional is a representative of the profession as a whole. Self-regulation is a privilege granted to professions on the understanding that the profession will govern itself in the public interest. Individual behaviour that departs from expected professional standards damages the reputation of the profession and undermines the public trust essential to its success. 8/70 Code of Professional Conduct – Interpretation Guide 2022-001 | ©2022 Duty of Good Faith Clients rely on professionals because of their specialized skills and knowledge. While the agreement between a professional and a client creates a contractual obligation to perform the agreed-upon services, this reliance also gives rise to the professional’s duty to act in good faith, in the client’s best interests, and to put the client’s interests ahead of those of the professional. This duty may be increased when the relationship is particularly unequal due to a client’s individual circumstances. Integrity Professionals must conduct professional dealings in an honest and straightforward manner. This includes following applicable legal requirements and professional standards and performing services with diligence and care. Where services are performed by others, the professional must ensure that employees and agents acting under their authority are appropriately trained and supervised. Objectivity To exercise sound professional judgment, the professional must view a client’s circumstances objectively, free from any conflict of interest, bias, or undue influence. Early identification of real or perceived conflicts helps to establish the relationship of trust necessary to provide effective professional services. Where a conflict exists, the professional must use recognized means to mitigate its impact. In conflicts where mitigation is inadequate, the professional must decline to act. Competence The public seeks and trusts a professional’s advice because of their specialized skills and knowledge. To maintain this trust, the professional must gain and maintain the skills and knowledge required to provide the services offered to the standards required by the profession. Confidentiality Client information obtained by the professional while providing services must be kept confidential and not disclosed without proper authorization. It must be used only for the purpose for which it was provided and must not be used for the personal advantage of the professional or anyone else. 9/70 Code of Professional Conduct – Interpretation Guide 2022-001 | ©2022 Principles Governing the Responsibilities of Firms Firms through which licensees provide professional services also have a responsibility to maintain the profession’s reputation for competence and integrity. The way firms conduct their affairs and provide services affects the public perception of the profession as a whole. Firms must also be accountable to the profession and the public. Accordingly, licensee firms are subject to the Code in the same manner as licensees. Firms also are responsible for implementing policies and procedures designed to ensure that the licensees provide professional services in a manner that complies with the standards of conduct and competence prescribed in this Code. Services provided by a firm are carried out by licensees who are expected to comply with the Code and other standards of practice of the profession. Where the firm has not done all that it could be reasonably expected to have done to ensure that such licensees and other employees do comply with professional requirements, both the firm and the licensee share accountability for a failure to comply with the rules. Steps expected to be taken by firms in this regard include: implementation of policies and/or procedures which are consistent with the Code and College By-laws; implementation of adequate quality control procedures; implementation of procedures to receive, record and resolve complaints by clients and others in a fair and expeditious manner; and implementation of procedures to prevent the condonation or concealment of misconduct. These fundamental principles should be considered in conjunction with the various statutory, Code and By-law requirements applicable to RCICs and RISIAs. It is equally important to recognize that, in the context of professional regulation, the written rules are intended merely to establish a minimum standard of professional conduct. Professionals must seek to comply with both the spirit and the letter of applicable professional standards in all of their dealings. Application of the Code The Code of Professional Conduct applies to all licensees irrespective of the professional services provided. As noted, licensees are responsible for ensuring that services provided by non-licensees under their supervision are provided in compliance with the Code. Licensees not engaged in the practice of immigration or citizenship consulting advice or services must observe the provisions of the Code, except where the clear wording of a Code provision makes it clear that the provision applies only to the practice of immigration and citizenship consulting, or otherwise exempts the activity from the application of the Code. 10/70 Code of Professional Conduct – Interpretation Guide 2022-001 | ©2022 The term "professional services" also applies to licensees who are not engaged in the practice of immigration and citizenship consulting. This includes those activities where the licensee’s associates or the public are entitled to rely on the licensee’s membership in the College as giving the licensee particular competence and requiring due care, integrity and an objective state of mind. Licensees are responsible to the College for compliance with these rules by others who are either under their supervision or share with them proprietary interest in a firm, agency or other enterprise. In this regard, a licensee must not permit others to carry out on the licensee’s behalf acts which if carried out by the licensee would place the licensee in violation of the rules. Licensees and prospective licensees who reside outside Canada continue to be subject to the rules of professional conduct of the College. Should the rules in two or more jurisdictions conflict, a licensee will, where possible, observe the higher or stronger of the conflicting rules and, where that is not possible, they will consider and apply the ethical conflict guidance set out above and elsewhere in this Interpretation Guide. 11/70 Code of Professional Conduct – Interpretation Guide 2022-001 | ©2022 Interpretation of the Code of Professional Conduct The provisions of the Code are to be read in light of the foreword and of any applicable provisions of the By-laws of the College. INTERPRETATION Definitions 1 (1) The following definitions apply in this Code. Act means the College of Immigration and Citizenship Consultants Act. (Loi) client means a person or entity that (a) has entered into a consultation agreement or service agreement with a licensee; (b) consults with a licensee who provides or agrees to provide immigration or citizenship consulting services to them; or (c) having consulted with a licensee, reasonably concludes that the licensee has agreed to provide immigration or citizenship consulting services to them. (client) Interpretation The definition of “client” as a person or an entity is new and was not in the previous RCIC Code of Professional Ethics; however, it has been defined in Council regulations.1 A client is an individual who reasonably concludes, based on a subjective belief, that the licensee has agreed to provide or has provided the service, regardless of whether a written agreement was signed or not. Once a person has satisfied the criteria of one of the subsections 1(1)(a), 1(1)(b) or 1(1)(c), they are considered a client. It is not a requirement under subsections 1(1)(b) and 1(1)(c) to enter into a consultation agreement or a service agreement to qualify as a client. Also, subsection 1(1)(c) does not automatically qualify an individual as a client. There must be objective evidence to demonstrate that the person had a reasonable expectation that the licensee agreed to provide services. For example, while only one spouse may be paying the licensee for a spousal sponsorship application, both spouses can reasonably expect that the licensee will provide them services and that they are the licensee’s clients. 1 Pursuant to s. 85(7)(o) of the Act, the By-laws and Regulations of the Immigration Consultants of Canada Regulatory Council (Council) remain in effect until replaced by Government Regulations promulgated under the Act and new College By-laws made by the College Board of Directors. It is anticipated that these Government Regulations and College By-laws will be completed in 2024. This Interpretation Guide will be updated to reflect these new instruments when they are in force. 12/70 Code of Professional Conduct – Interpretation Guide 2022-001 | ©2022 Clients of licensees who simply share an office with other licensees but do not operate as a firm, are not clients of those other licensees. Licensees working in these shared office spaces should clarify that there is no affiliation with those other licensees and that clients should not expect to receive services from those other licensees. A client of a licensee working for a firm is the client of that firm. Providing general information to an individual does not necessarily make them a “client”. However, when the information provided becomes personal, deals specifically with the individual’s circumstances and includes services that could be provided, it is likely that a client relationship may exist. The definition of client does not change any current practices. “Consulting” and “consulting services” includes all immigration and citizenship services a licensee may provide, including advice and representation. The Act (s.10) deems the “members” of the College to be the licensees. All RCICs and RISIAs are now “licensees” of the College. Conflict of Interest (2) For the purposes of this Code, a conflict of interest exists if there is a substantial risk that a licensee (a) may improperly further their private interests or another person’s interests, resulting in a material compromise to the licensee’s ability to fulfill their professional obligations to a client; or (b) cannot fulfill their professional obligations to a client without materially compromising the licensee’s ability to fulfill their professional obligations to another client or a former client. Interpretation This definition of conflict of interest is new and should be read in conjunction with sections 5, 15, 16, 17, and 18 of the Code. When an individual’s business/firm or family relationships, friendships or social factors could compromise their judgment, decisions, or actions, it is considered a conflict of interest. In addition, it is important to note that a conflict of interest could arise at any time in a client- consultant relationship. Family may include an individual’s father, mother, stepfather, stepmother, foster parent, brother, sister, stepbrother, stepsister, spouse, common law partner, child (including child of a common law partner), stepchild, ward, father-in-law, mother-in-law, or relative permanently residing with the individual. 13/70 Code of Professional Conduct – Interpretation Guide 2022-001 | ©2022 Types of conflict of interest can include: any action/decision that could result in financial gain, social or cultural advantage; any action/decision that could benefit an individual such as special consideration by persons of influence, disclosure of information that advances a position, or referral to another business where the licensee has a financial interest; any action/decision that involves a person getting or giving a “deal” on property, merchandise, etc. that would compromise the individual’s values and beliefs (turning a blind eye to a transaction); or any action/decision that could put an individual at an advantage in their professional status such as disclosure of confidential information, non-disclosure, or critical information, or competing interests outside of the profession. Performing two different (dual relationship) roles may knowingly or unknowingly expose the licensee to a conflict of interest. Some examples include, but are not limited to: a licensee who holds 2 licences (e.g., holding a real estate licence and a College licence) and who provides those other services to a client; a licensee selling a vehicle to a client; a licensee renting accommodation to a client; a licensee providing employment to a client; a licensee providing investment advice or products to a client; or a licensee entering into a personal/romantic relationship with a client. Section 15 of the Code outlines how a licensee can manage that conflict, by disclosing the conflict to the client and then obtaining the client’s free and informed consent in writing outlining that the client intends to continue working with the licensee despite the conflict. However, the section prohibits licensees from providing immigration/citizenship consulting services when to do so may compromise the licensee’s duty of objectivity or client confidentiality (s. 15(2) of the Code) – even if the client is willing to consent to receiving those services, notwithstanding that a conflict exists. Section 16 of the Code sets out certain conflicts that are considered too serious to be resolved by disclosure and consent, except in the circumstances discussed therein. Sections 17 and 18 of the Code describe additional circumstances raising conflicts of interest and certain mitigation strategies applicable to employment recruitment and student recruitment services, respectively. 14/70 Code of Professional Conduct – Interpretation Guide 2022-001 | ©2022 Purpose and Application Purpose 2 This Code sets out the standards of professional conduct and competence that must be met by licensees of the College. Application 3 This Code applies to licensees, including in respect of any pro bono immigration or citizenship consulting services offered or provided by them. Interpretation The Code seeks to set minimum standards of professional conduct and is applicable to all licensees acting in various capacities. Specific inclusion of pro bono services underscores that the public seeks advice and services provided by regulated professionals because they trust them to provide competent and ethical advice which meets professional standards. Professionals have a duty to provide advice and services that meet the standards of the profession whether it is provided for compensation or on a pro bono basis. These standards are described in more detail in sections 4 through 20 of the Code. General Standards Professional Conduct Standards of Profession 4 (1) A licensee must uphold the standards of the profession and perform their professional obligations honourably and with integrity. Interpretation The standards of the profession are the model against which licensees are evaluated. They go beyond simply what licensees must do or not do. Professional standards consist of duties, behaviours, attitudes, levels of competence, and ethical principles. These standards must be followed when providing any services, whether for compensation or on a pro bono basis. Cross-reference this section with the Foreword – Fundamental principles governing professional conduct. 15/70 Code of Professional Conduct – Interpretation Guide 2022-001 | ©2022 Key points – acting honourably and with integrity: - is critical for anyone entrusted to provide professional immigration services; - comes with the responsibility given to licensees in return for the privilege to provide immigration services; - is important, as conduct reflects on the entire profession; - is necessary for upholding the integrity of the Canadian immigration system; - is essential for establishing trust with clients, community, government, and other licensees; - means that neither personal nor client interest can overtake the duty to perform obligations honourably and with integrity. Example: counselling a client to misrepresent information on their application, although it may further the client’s interest, undermines trust in the licensee and the profession generally. Conduct unbecoming (2) A licensee must not engage in conduct that is likely to discredit the profession or jeopardize the public’s confidence and trust in the profession. Interpretation Conduct unbecoming can include conduct undertaken by a licensee while acting in either a professional or personal capacity. Whether conduct negatively impacts the reputation of the profession and the public’s confidence and trust in it will be measured on an objective standard, i.e., would a reasonable person, learning of the conduct, be less inclined to have confidence in or trust a licensee? The general standards included in this part of the Code (ss. 5-22) collectively illustrate the conduct expected of licensees and inform the definition of “conduct unbecoming”. Specific actions that could constitute “conduct unbecoming” include: - taking advantage of a person’s vulnerability due to age, inexperience, lack of education or ill health to the detriment of that person; - being dishonest, committing fraud, breaching the client’s trust; - committing a criminal act or other statutory offence, demonstrating the licensee’s lack of trustworthiness or mental or emotional instability. 16/70 Code of Professional Conduct – Interpretation Guide 2022-001 | ©2022 Duty of loyalty 5 A licensee must be loyal to their clients, including by avoiding conflicts of interest and by being committed to their clients’ cause. Interpretation This section is new. It requires an additional commitment from the licensee to be invested in the client’s cause, to advocate for the client and to act in the client’s best interest, including in situations where the client’s interest may conflict with those of the licensee. Note that section 15 of the Code does allow the licensee to provide services where certain conflict of interest situations exist, provided the licensee has been transparent and has disclosed the nature and extent of the conflict to the client in writing and the client provides free and informed consent in writing. Note also that section 16 of the Code sets out certain situations where a conflict of interest cannot be resolved by mere disclosure and consent. In these situations, and subject to the limited exemption provided in section 16(2), the licensee must decline to act for the client. This section must be cross-referenced with section 6 of the Code – Duty of honesty and candour. Duty of honesty and candour 6 A licensee must be honest and candid when advising their clients. Interpretation Licensees have a positive obligation to be honest, transparent and candid when advising clients. This includes fairly and objectively assessing a client’s needs and suitability for any available, applicable immigration programs, and providing an honest and straightforward opinion as to the client’s chance of success as early as possible. This duty applies as soon as the licensee begins advising the client, before a service agreement is even signed. Licensees should not propose immigration programs, for which the client has no objective chance of success. If there are risks or delays inherent to the program, those must be fully outlined to the client so they can make an informed choice. Moreover, licensees should propose the most efficient and cost-effective strategy for their clients, not the strategy from which the licensee has the most to gain financially or with which the licensee is most comfortable. In situations where the licensee is not sufficiently familiar with the requirements of a particular program (e.g., investor class or refugee determination) or lacks the time and capacity to properly serve their client, a licensee needs to be upfront with their client about 17/70 Code of Professional Conduct – Interpretation Guide 2022-001 | ©2022 their own limitations and offer the client the opportunity to meet with another, suitable authorized representative. A licensee should carefully reflect on how their personal and financial interests influence their thinking and ensure that the professional advice they provide serves their client’s best interests, not purely their own. All professionals struggle with the decision of whether to accept and take on a client whom they realistically cannot assist. This is a particularly difficult issue in the immigration context because of the desperate circumstances in which a number of clients find themselves. Nonetheless, licensees are expected to fairly outline to their clients the realistic prospects of a successful application and the licensee’s limits in being able to change those prospects. While a certain degree of uncertainty on the outcome is inherent to every immigration program, licensees should not use that as an excuse to either accept clients who have no prospect of success or to downplay the serious risk of a refusal. This duty also applies throughout the application process to afford the client the opportunity to withdraw without incurring unnecessary fees. Duty of civility 7 A licensee must be courteous and civil in all of their professional dealings. Interpretation Civility is required in all professional dealings with the courts, the Immigration and Refugee Board of Canada, government officers or officials, clients, other licensees, agents and the College as the regulator. This requirement is clearly intended to be broad and encompass all dealings conducted in the capacity of a licensee, including dealings with professional colleagues and other business dealings arising from the licensee’s work, and dealings with any other people that a licensee may encounter in the course of day-to-day work (e.g., landlords, service providers and suppliers). This obligation applies to licensee communications, written, digital, online or in person, and particularly to communications between licensees and the public, and between licensees and the College. A licensee must always act professionally. Cross-reference this obligation with the Foreword – Fundamental Principles Governing Conduct, and s. 4(1) of this Code. 18/70 Code of Professional Conduct – Interpretation Guide 2022-001 | ©2022 Relationship of trust 8 A licensee must foster a relationship of trust with their clients, including by not taking advantage of their clients’ vulnerabilities. Interpretation This section is new and should be read in conjunction with section 5 – Duty of loyalty, and section 6 – Duty of honesty and candour of the Code. It is inappropriate for a licensee to seek personal or business advantage by exploiting the vulnerabilities of a client, including, but not limited to: age culture economic status immigration status communication abilities (oral and written) gender mental health status country of origin disabilities. Clients rely upon licensees from the outset of the client-licensee relationship because of the licensee’s special knowledge and skills. This reliance may increase when a client is especially vulnerable due to other factors or circumstances. In these cases, the licensee must take extra steps to avoid the perception, on the part of the client or others, that the licensee is exerting undue influence over the client’s decisions. These extra steps could include providing the client with additional explanatory materials (in the client’s language of choice), obtaining, explaining and documenting additional client consent to individual steps occurring throughout the immigration application process, engaging another authorized representative to provide a second opinion and including it in the file, or, with the client’s express consent, providing information to another person ( e.g., a family member) who will assist the client to understand and provide clear instructions to the licensee. Compliance with applicable legislation 9 A licensee must demonstrate law-abidance through compliance with all applicable legislation, including the Act and any regulations and by-laws made under the Act. Interpretation It should go without saying that licensees must comply with all applicable laws. This includes the Immigration and Refugee Protection Act, the Citizenship Act, the College of Immigration and Citizenship Consultants Act and any other legislation impacting a licensee in the course of business, including any College By-law and other College obligations imposed under the 19/70 Code of Professional Conduct – Interpretation Guide 2022-001 | ©2022 College Act. This includes all requirements that relate to professional conduct and the competency of licensees (e.g., Continuing Professional Development and Annual Renewal requirements). A licensee should consult with a lawyer or other legal professionals as necessary to ensure compliance with all applicable legislation. Discrimination 10 A licensee must not, in any of their professional dealings, engage in a discriminatory practice within the meaning of the Canadian Human Rights Act. Interpretation This section references the federal Canadian Human Rights Act as the guide to ensure licensees do not engage in discriminatory practices. The Canadian Human Rights Act sets out the following prohibited grounds of discrimination: a) Race b) National or ethnic origin c) Colour d) Religion e) Age f) Sex g) Sexual orientation h) Gender identity or expression i) Marital status j) Family status k) Genetic characteristics l) Disability m) Conviction of an offence for which a pardon has been granted or a record suspension has been ordered. A discriminatory practice includes a practice based on one or more of the above prohibited grounds of discrimination or arising from a combination of prohibited grounds. Refusing to provide immigration or citizenship consulting services to a client based on any of the above grounds is discriminatory. 20/70 Code of Professional Conduct – Interpretation Guide 2022-001 | ©2022 Intimidation and coercion 11 A licensee must not, in any of their professional dealings, intimidate or coerce any person, including by (a) applying undue pressure, directly or indirectly; (b) making physical or verbal threats; (c) engaging in any form of harassment, including sexual harassment; (d) using their knowledge about social and cultural norms to exploit a situation; (e) untruthfully asserting possible sanctions or administrative consequences; or (f) threatening, without reasonable grounds, to file a complaint with law enforcement authorities alleging a contravention of a federal or provincial law, initiate a criminal proceeding or make a complaint to an administrative or regulatory body. Interpretation This section is new and provides examples of the types of intimidation and coercion that can occur directly or indirectly. Reliance on the licensee’s expertise by the client places, or may be perceived to place, the licensee in a position of power and influence over the client. Licensees have a positive obligation to ensure that this unequal balance of power is not misused to exert any inappropriate power or influence over the client in any of their professional dealings. Examples of this could include: Providing clients with unrealistic deadlines or insisting on quick decisions; Clients can be easily intimidated by the overwhelming information involved in immigration processes, the authority of the government officials and the courts, and the technical language used by these institutions. Coercion occurs when a client feels forced into a decision or action. However, when a client has misrepresented their situation, used fraudulent documents, or committed any other illegal activity, it is the licensee’s obligation (s. 12 of the Code) to explain to the client the ramifications of proceeding under these circumstances and if the client decides to proceed, the licensee must terminate the service contract. Sexual harassment is any unwanted comment, gesture, or action that is sexual in nature that makes someone feel afraid, embarrassed, uncomfortable or ashamed. Defying or ignoring a cultural or social norm may intimidate the client. It is imperative for the licensee to be aware and sensitive to cultural and social norms within specific cultural or social groups and not inadvertently or intentionally use these as a form of coercion or intimidation of a client. 21/70 Code of Professional Conduct – Interpretation Guide 2022-001 | ©2022 Language that may be perceived as too familiar or too formal can also be seen as a type of intimidation and/or coercion. A licensee must never use the immigration process, the justice system or the regulatory body to threaten to file a complaint against a client. If a client has contravened a law or violated a rule set by an administrative authority or regulatory body, the licensee must report the client, if required or authorized by law (s. 28(2)(b) of the Code), if required to comply with a subpoena (s. 28(2)(c) of the Code), or if required by the College in the exercise of its powers under the Act (s. 28(2)(d) of the Code) and terminate the service agreement. Dishonesty, fraud or illegal conduct 12 A licensee must not, in any of their professional dealings, knowingly assist in or encourage dishonesty, fraud or illegal conduct. Interpretation When a licensee is employed or retained and asked to do anything the licensee knows, or ought to know is dishonest, fraudulent or otherwise illegal the licensee must: Advise the client that the proposed conduct would be dishonest, fraudulent or illegal and should be stopped; and If the client still intends to pursue the course of conduct, withdraw from the matter and/or terminate the service agreement. This section should be cross-referenced with subsection 35(1)(b) of the Code that requires a licensee to terminate their service agreement with the client if the client asks the licensee to act in a manner that the licensee knows or ought to know is dishonest, fraudulent, or otherwise illegal. Inducement 13 (1) A licensee must not a) offer an inducement to any organization or person for recommending the licensee to a client or referring a client to the licensee; or b) solicit or accept an inducement from any organization or person for recommending the organization or person to a client or referring a client to the organization or person. Non-application (2) Paragraph (1)(a) does not apply in respect of an inducement offered to an agent who solicits 22/70 Code of Professional Conduct – Interpretation Guide 2022-001 | ©2022 clients for a licensee if the licensee registers the agent’s name with the College in advance. Interpretation An inducement is any benefit or advantage (including, without limitation, a gift, favour, bribe, benefit, bonus, monetary payments or commission) granted directly or indirectly to any organization or person that is prohibited under the Code. A licensee must not give or receive an inducement from any organization or person for recommending the organization or person to a client or referring a client to the organization or person. When a client refers another client to a licensee and receives a discount in fees, it is an inducement. Inducements for referrals and/or recommendations compromise the objectivity of the person providing the referral. When others are motivated by the potential for financial gain and refer clients to licensees who are simply willing to pay them the largest fee, it creates a conflict of interest. Also, the lack of transparency can undermine the client’s trust as the client may not be aware of the true reason for the referral and/or the competency of the licensee being referred. There is a difference between acceptable forms of marketing and client referrals. Licensees are not prevented from engaging in advertising their services (i.e., online or in print) or making reasonable expenditures on promotional items of nominal value, or public informational activities that may result in the referral of clients. Acceptable marketing activities include those where: the licensee’s firm is being specifically and directly promoted; the entity that the licensee is paying for that promotion is in the business of advertising; and the regular consumer would recognize the promotion as paid advertising. Subsection 13(2) of the Code allows for an inducement to be provided to an agent who solicits clients for a licensee only if the licensee provided the College with the agent’s information in advance and the information is validated by the College. The licensee will be required to pay to the College a registration fee, and an annual fee for maintaining the agent’s registration (Agents Regulation, ss. 14.1(d) and 15.1). The College will conduct a verification process to approve the agent before the agent may provide any services on behalf of the licensee. The intention is to permit licensees to contract with international agents for referrals of potential clients in those international jurisdictions, not domestic agents. There is no need to identify domestic agents in Canada as section 20(2) of the Code allows a licensee to contract with 23/70 Code of Professional Conduct – Interpretation Guide 2022-001 | ©2022 another individual to obtain assistance to provide immigration and consulting services. Any services a licensee requires within Canada should be individual contracts with service providers. Licensee must ensure that any agent and/or individual contract for providing immigration or citizenship consulting services on behalf of a licensee must comply with section 38 of the Code – Professional Responsibility. A licensee must supervise and assume all responsibility for any services provided by an agent or by contract, and ensure they are provided in compliance with the Code. Fee (3) A fee referred to in paragraph 17(3)(d) or 18(3)(d) is not an inducement for the purposes of paragraph (1)(b). Interpretation This section is new. There is a difference between a recruitment fee and an inducement fee. An inducement fee (s. 13 of the Code) is paid to an organization or person for recommending/referring the licensee to a client or referring a client to a licensee. A recruitment fee is the fee paid by the employer to the licensee for recruiting a client to work for the employer (s. 17(3)(d) of the Code) or providing student recruitment services (s. 18(3)(d)). These fees are not considered inducement fees. However the licensee must disclose to the client/student any fees the licensee is receiving from the employer or institution for recruiting the client/student. Fees are part of the service agreement that is signed by the licensee and the client. However, if the licensee is advertising/promoting a reduction in fees as an incentive for the client to engage the licensee and there is no referral involved and no third party, it does not fall under the category of inducement. Original documents 14 (1) A licensee must not take possession of any of a client’s original documents unless the possession is for one of the following purposes and the documents are returned to the client as soon as that purpose has been achieved: a) making copies; b) complying with a legal requirement or a requirement of a government authority; or c) a purpose to which the client has consented in writing. 24/70 Code of Professional Conduct – Interpretation Guide 2022-001 | ©2022 Interpretation The best practice for licensees is to not possess any original client documents, including digital and paper copies as well as the client’s online account and login information. Clients can bring original documents to the licensee for copying; however, the licensee should not keep the original documents. A licensee working with an agent must supervise and assume responsibility for any work done by the agent (s. 38 of the Code) which includes copying and returning original documents for clients out of the country. Improper retention of clients’ documents is a serious issue that has led to many complaints against licensees. Client documents include: Documents created before the retainer/service agreement, provided by the client or from a third party; Documents prepared by the licensee for the client’s benefit or protection and paid for by the client; Documents prepared by a third party and sent to the licensee (other than at the licensee’s expense); Documents sent to the licensee by a third party; and Documents sent by the licensee to the client. Where a licensee requires original client documents for the purpose of providing professional services, the client should be provided with the reason the original document(s) needs to be retained by the licensee and the date the document(s) will be returned to the client, in writing. Client documents (2) A licensee must, at the request of the client, deliver to the client any documents or information in the licensee’s possession that pertain to the client’s application or expression of interest or to a proceeding in which the client is a party. Interpretation In addition to taking possession of original documents for the purpose of copying, licensees may take temporary possession to facilitate the submission of applications or processing before the Immigration and Refugee Board of Canada (IRB). 25/70 Code of Professional Conduct – Interpretation Guide 2022-001 | ©2022 When licensees temporarily possess any original documents from a client, the licensee must obtain the client’s consent in writing and must return the original documents upon completion of the requirement for which the document was provided by the client, or otherwise in accordance with the by-laws. Section 4 of the Client File Management Regulation makes no reference to “original” documents. All documents in the licensee’s possession are copies. Conflicts of interest 15 (1) Subject to sections 16 to 18, a licensee must not provide immigration or citizenship consulting services to a client if doing so would or could result in a conflict of interest unless the licensee has disclosed the nature and extent of the conflict to the client in writing and the client provides free and informed consent in writing. Duty to avoid conflict (2) Despite subsection (1), a licensee must not provide immigration or citizenship consulting services to a client, even with their consent, if doing so would result in a conflict of interest unless the licensee has reasonable grounds to believe that they are able to advise and represent that client without compromising (a) their objectivity or the relationship of trust with any of their clients; or (b) their duty of confidentiality towards any of their clients or former clients. Interpretation This section of the Code further restricts the ability of licensees to provide services where there is a real or potential conflict of interest. Prior to this, licensees could simply disclose the conflict and seek the consent of their client. Licensees must now also have reasonable grounds to believe that their objectivity, relationship of trust, and duty of confidentiality towards the client would not be compromised. This requires introspection on the part of the licensee. The licensee must not provide immigration or citizenship consulting services unless the conflict of interest is disclosed, and the person must give free and informed consent in writing. To meet this standard, the licensee must fully explain the conflict and the client’s consent must be provided voluntarily. Licensees should note that the term “conflict of interest” is broadly defined in section 1(2) of the Code and includes specific behaviours and activities listed in sections 16 and 17 of the Code. 26/70 Code of Professional Conduct – Interpretation Guide 2022-001 | ©2022 Immediate family means an individual’s father, mother, stepfather, stepmother, foster parent, brother, sister, stepbrother, stepsister, spouse, common law partner, child (including child of a common law partner), stepchild, ward, father-in-law, mother-in-law or relative permanently residing with the individual (definition under s. 1.1(ii) of By-law 2021-2). Licensees have a duty to disclose any potential conflicts of interest to clients and/or employers. Examples of types of conflicts of interest may include: Business: licensee acts as an investment advisor to the client; Personal: licensee is in a personal/romantic relationship with the client; Material: licensee sells property, vehicles, etc. to the client; Professional: dual relationships – licensee performs two roles that conflict with each other (real estate agent and immigration representative). The onus is on the licensee, not the client, to determine whether a conflict of interest exists. Unauthorized behaviours 16 (1) The following behaviours constitute a conflict of interest to which a client cannot consent: (a) a licensee directly or indirectly lending money to, or borrowing money from, a client; (b) a licensee directly or indirectly undertaking any transactions with a client that are not in relation to the provision of immigration or citizenship consulting services; or (c) a licensee having an intimate personal relationship with a client or a former client within one year after the day on which the service agreement is completed or terminated before its completion, unless the client is the licensee’s spouse at the time that the immigration or citizenship consulting services are provided or has cohabited with the licensee in a conjugal relationship for a period of at least one year before the services are provided. Interpretation This is a new requirement which prohibits certain relationships that create serious conflicts of interest by their very nature. These conflicts are considered so serious and difficult to mitigate that the Code prohibits licensees from providing services under these circumstances. Note that a “direct” conflict is one involving the licensee, whereas an “indirect” conflict is one where the benefit arising from the conflict may flow to a related party to the licensee or the client or, where the conduct may be performed by a related party to the licensee or the client. 27/70 Code of Professional Conduct – Interpretation Guide 2022-001 | ©2022 Examples of a direct conflict include the sale of a property to a client by a licensee acting for the client, where the licensee is also a realtor and receives a commission from the purchase; or hiring of the client by the licensee as an employee. Examples of an indirect conflict could include a licensee suggesting that a client provide a loan or gift to the licensee’s spouse or other close family member or investing in a corporate entity owned or controlled by the licensee. Other notes to consider: The direct or indirect use of a client’s property, vehicle or other monetary services or items is considered borrowing from a client. A client directly or indirectly using a licensee’s property, vehicle or other monetary services or items is considered lending to a client. In situations where circumstances require a licensee to pay application fees on behalf of a client, the licensee is required to document the payment and the agreed date the client will reimburse the payment. The payment is not considered to be a loan. Entering a payment plan with a client for payment of the licensee’s professional fees would not be considered a loan provided the payment plan is agreed to in writing as part of the service agreement and includes an explanation of all services and any other fees, such as any related interest. A licensee must obtain acknowledgement in writing that the client has received independent legal advice stating that the transaction referred to in subsection (b) is not a conflict of interest. “Other transactions” may include, but are not limited to, rental of property, event and/or airline tickets, or entertainment and meals. A licensee should not represent a client or enter a service agreement with any person who they are involved with in an intimate relationship. Spouses are the exception to section 16(1)(c). A spouse of a licensee means a person who has lived with the licensee in a conjugal relationship outside of marriage continuously for a period of at least one year before any services are provided. Interpretation — paragraph (1)(b) (2) A client may consent to the behaviour referred to in paragraph (1)(b) if the transaction is fair and reasonable and the client has confirmed to the licensee in writing that they have received independent advice in respect of the transaction. Definition of employment recruitment services 17(1) For the purposes of this section, employment recruitment services means any of the following services: 28/70 Code of Professional Conduct – Interpretation Guide 2022-001 | ©2022 (a) seeking or obtaining employment for a client; (b) assisting or advising any person with respect to seeking or obtaining employment for a client; (c) assisting or advising an employer or another person with respect to hiring a client; or (d) referring a client to another person who offers the services referred to in any of paragraphs (a), (b) or (c). Conflict of interest — employment recruitment services (2) A licensee is in a conflict of interest if they provide both immigration or citizenship consulting services and employment recruitment services to a client who is a foreign national, as defined in subsection 2(1) of the Immigration and Refugee Protection Act. Interpretation A licensee must clearly state the services that will be provided to the client in the service agreement and identify any conflict of interest (s. 24(3)(o) of the Code). A licensee cannot provide immigration or citizenship consulting services AND employment recruitment services to a client who is a foreign national unless the conditions in section 17(3) of the Code are fully met. Note that the definition in section 2(1) of the Immigration and Refugee Protection Act defines “foreign national” as “a person who is not a Canadian citizen or a permanent resident, and includes a stateless person”. A “permanent resident” is defined in the same section as “a person who has acquired permanent resident status and has not subsequently lost that status under section 46”. Some provinces have licensing requirements for individuals or businesses involved in the recruitment and placement of foreign nationals. A licensee must comply with the applicable provincial legislation, if any, in order to provide employment recruitment services. Conditions (3) However, a licensee may provide both immigration or citizenship consulting services and employment recruitment services to a client who is a foreign national if the licensee a) before providing those services, advises the client that they are not obligated to receive both services from the same individual and obtains the client’s free and informed consent in writing to proceed; b) ensures that the service agreement clearly differentiates between the immigration or citizenship consulting services and the employment recruitment services that will be provided to the client; c) does not directly or indirectly charge a fee or disbursement to the client for any employment recruitment services; 29/70 Code of Professional Conduct – Interpretation Guide 2022-001 | ©2022 d) discloses to the client the fees that the licensee is receiving from an employer for recruiting the client to work for the employer; e) complies with all applicable legislation governing the provision of employment recruitment services; and f) demonstrates honesty and candour towards the client and commitment to the client’s cause, including by providing the client, before they begin working in Canada, with a copy of their employment contract and accurate information regarding the work that they will be doing and their wages, benefits and working conditions. Interpretation A licensee can provide immigration or citizenship consulting services AND employment recruitment services to a client (acting in a dual role/capacity) if the following conditions are met: The licensee informs the client that there is no obligation to have both services provided by the same licensee or firm; The client provides free and informed consent to the dual services in writing; There is no direct or indirect fee or other cost charged to the client for any employment recruitment services, including any increase to the usual fees charged for immigration consultancy services (e.g., work permit fees); The licensee informs the client of the exact fee (if any) the licensee is receiving from the employer for recruiting the client; The licensee complies with all applicable legislation regarding employment recruiting services; Before the client begins working in Canada, the licensee provides the client with a copy of the employment contract; and Accurate information regarding the work, wages, benefits and working conditions expected of the client. Pursuant to section 9 of the Code, a licensee must demonstrate law compliance with all applicable legislation, including the Act, and any regulations and by-laws made under the Act. In addition to meeting the conditions in section 17(3) of the Code, a licensee must also comply with the applicable provincial legislation, if any, especially given that some provinces prohibit licensees from providing both immigration or citizenship service AND employment recruitment services to a foreign national. 30/70 Code of Professional Conduct – Interpretation Guide 2022-001 | ©2022 Definition of student recruitment services 18 (1) For the purposes of this section, student recruitment services means any of the following services: (a) seeking or obtaining enrollment for a client at an institution that provides education or training to international students; (b) assisting or advising any person with respect to seeking or obtaining enrollment for a client at an institution that provides education or training to international students; (c) assisting or advising a representative of an institution that provides education or training to international students or any person with respect to admitting a client to such an institution; or (d) referring a client to another person who offers the services referred to in paragraphs (a) (b) or (c). Interpretation This is a new, broader definition intended to clarify that student recruiting activities performed by licensees are within the regulatory ambit of the College and may only be performed with the provision of immigration services if certain conditions are met. Note that section 18(2) of the Code provides a clear exemption for licensees employed directly by educational institutions. Section 17(2) of the Code should be cross-referenced to section 15 of the Code – Conflicts of interest Conflict of interest — student recruitment services (2) A licensee is in a conflict of interest if they provide both immigration or citizenship consulting services and student recruitment services to a client who is a foreign national, as defined in subsection 2(1) of the Immigration and Refugee Protection Act, unless the licensee is providing those services in their capacity as a salaried employee of an institution that provides education or training to international students. Interpretation The prohibition against a licensee providing both immigration and student recruitment services, except under the prescribed conditions, is intended to address abusive circumstances where a licensee’s interests may, or may be seen to, conflict with those of the student/client due to the payment of recruitment fees or inducements to the licensee from an employer or 31/70 Code of Professional Conduct – Interpretation Guide 2022-001 | ©2022 other third party. To address this real or perceived conflict, the Code requires that the conditions set out in section 18(3) be observed. These conditions require, among other things, disclosure of the existence and amount of any fees the licensee is receiving from the employer or third party and notice to the student/client that they are not obligated to receive both services from the same licensee and must consent in writing should they wish to do so. This written consent requirement is an important protection for licensees as, in many cases, express client consent (evidenced in writing) will mitigate a real or perceived conflict of interest. Note, however, that the Code requires the consent to be “free and informed” to be valid. While there is much case law on the meaning of this legal term, “free” consent generally requires that the giver not be subject to pressure or undue influence, including threats or intimidation; and “informed” consent generally requires that the giver have a full understanding of any facts and context necessary to understanding the advantages and disadvantages of giving or withholding the consent. These are high standards to meet. Licensees are cautioned to err on the side of providing more, rather than less, information, and engage in well-documented discussions with any client where consent is sought under this exemption. Additional conditions include: (1) provision of a detailed service agreement that expressly discloses and describes each of the individual services (e.g., immigration and student recruitment that will be provided); (2) disclosure of any recruitment fees paid to a licensee by an employer or educational institution for recruiting clients or students to work for that employer or study at that educational institution; (3) provision of detailed information about the educational institution, its services, processes, fees and the proposed student’s course of study; and (4) compliance with applicable provincial and other legislation impacting recruiting activities. Finally, subsection 18(3)(c) of the Code prohibits the licensee from charging any fees or disbursements attributable to the recruiting process to the client/student. This last requirement clearly indicates that the regulatory regime implemented by the Code intends the licensee to provide any recruitment services (as distinct from immigration services) for the account of the employer or educational institution, and not the client/student. Conditions (3) However, a licensee may provide both immigration or citizenship consulting services and student recruitment services to a client who is a foreign national if the licensee 32/70 Code of Professional Conduct – Interpretation Guide 2022-001 | ©2022 (a) before providing those services, advises the client that they are not obligated to receive both services from the same individual and obtains the client’s free and informed consent in writing to proceed; (b) ensures that the service agreement clearly differentiates between the immigration or citizenship consulting services and the student recruitment services that will be provided to the client; (c) does not directly or indirectly charge a fee or disbursement to the client for any student recruitment services; (d) discloses to the client the fees that the licensee is receiving from an institution that provides education or training to international students for recruiting the client to study at that institution; (e) complies with all applicable legislation governing the provision of student recruitment services; and (f) demonstrates honesty and candour towards the client and commitment to the client’s cause, including by providing the client with accurate information regarding (i) the institution they will be enrolled in, which includes providing a copy of their enrollment agreement, if any, (ii) their program of study, (iii) the tuition fees and the institution’s refund policy, and (iv) the services, support and benefits that the institution will be providing. Interpretation As per section 13 of the Code, an inducement fee is paid to an organization or person for recommending/referring the licensee to a client or referring a client to a licensee while a recruitment fee is the fee paid by the employer to the licensee for recruiting a client to work for the employer. An inducement fee is prohibited. Licensees may perform a dual role by providing recruitment services and immigration and/or citizenship services. In these cases, a copy of the employment contract for licensees who are also recruiters must be provided to the client (ss. 17(3)(f) of the Code). A licensee can provide both immigration or citizenship consulting services AND student recruitment to a client who is a foreign national if: the client is advised they are not obligated to receive all of the services from the same licensee; the client consents in writing to receive all of the services from the same licensee; 33/70 Code of Professional Conduct – Interpretation Guide 2022-001 | ©2022 the service agreement clearly defines the differences between each of the services; no fees, either directly or indirectly, are charged for any student recruitment services; the licensee discloses the fees received from an educational institution for recruiting the client to study at that learning institution; the licensee complies with all applicable legislation pertaining to student recruitment; licensee provides accurate written information and a copy of the student’s enrollment agreement, program of study and tuition fees as well as the refund policy of the learning institution and the support and benefits that it will provide. Competence Competence and diligence 19 (1) A licensee must fulfill their professional obligations competently and diligently and must refrain from providing any immigration or citizenship consulting services that they are not competent to provide or that are beyond the scope of their licence. Nature of competence (2) To fulfill their professional obligations competently, a licensee must (a) have the knowledge and experience necessary to provide the required immigration or citizenship consulting services and offer sound and comprehensive advice to a client, including in-depth knowledge of the Immigration and Refugee Protection Act and the Citizenship Act and any related programs and policies; (b) have the oral and written communication skills necessary to protect a client’s interests and present a client’s case firmly and persuasively and within the limits of the law, including the ability to (i) make clear and cogent oral and written representations in legal proceedings, (ii) identify the salient points in an argument and respond to them effectively in the course of a hearing, and (iii) know when it is appropriate to apply for an adjournment of a hearing and argue effectively for it; (c) meet any applicable provincial competency requirements in relation to the provision of immigration or citizenship consulting services; (d) be able to provide the services to the client in at least one of the official languages of Canada; 34/70 Code of Professional Conduct – Interpretation Guide 2022-001 | ©2022 (e) be able to deliver the services to the client using technology that is appropriate and effective; and (f) maintain a good working knowledge of the regulations and by-laws made under the Act that relate to the professional conduct and competence of licensees and of any related policies, procedures and guidelines of the College. Interpretation Competence to perform a particular professional service includes two aspects – knowledge and skills, and personal capacity. Knowledge and skills are determined by formal qualifications, including licensing, and experience. For example, licensees who have not obtained the “Class L3 – RCIC-IRB – Unrestricted Practice” licence before July 1, 2023, will not be competent to represent clients in matters before tribunals of the Immigration and Refugee Board of Canada (IRB) after that date, and must refer a client needing these services to a licensee with the RCIC-IRB qualification. In other circumstances, a licensee who is technically permitted to perform a particular service under the terms of their licence, may still lack the experience or specific knowledge (and therefore the competence) to do so. Many trial lawyers, for example, would not attempt to do a real estate transaction, though technically permitted to do so under law society rules. Immigration consultants who specialize in specific areas of practice, should be wary of undertaking tasks in unfamiliar areas. Likewise, a new licensee should take time to consider whether they have the requisite skills and experience to carry out each new matter they propose to take on. Where a client file raises complex issues that may be beyond the skills and experience of the licensee, it may be prudent, or necessary, to engage more experienced co- counsel or refer the file to another licensee. Issues of physical or mental capacity can also render a licensee “incompetent” to provide services. Section 38.1 of the By-law describes a licensee as incapacitated if, by reason of physical or mental illness, condition, or disorder, they are incapable of meeting their obligations under the by-laws, Regulations or Code of Professional Conduct. The By-law allows the College to investigate a licensee if information has been received suggesting the licensee is incapacitated (s. 38.2 of the By-law). Following an investigation, the Fitness to Practise Committee can make a determination of the licensee’s capacity (s. 38.3 of the By-law) and an examination by a physician or psychologist can be ordered. Should the licensee refuse to be examined, their licence is suspended until they comply. If the licensee is determined to be incapacitated the Fitness to Practise Committee may by order: suspend the licensee’s licence; impose restrictions or conditions on the licensee’s right to practise; or make any other order, other than revoking the licensee’s licence, that the Fitness to Practise Committee considers necessary to protect the public interest. 35/70 Code of Professional Conduct – Interpretation Guide 2022-001 | ©2022 The official languages referenced in subsection 19(2)(d) of the Code are English and French. A licensee must be competent to provide services to a client in one of Canada’s official languages. If the licensee is unable to provide services in the official language of the client’s choice, the licensee should refer the client to another licensee or authorized representative who is competent to provide services in that language. Obligation if not competent 20 (1) A licensee who lacks the competence to provide the required immigration or citizenship consulting services must (a) decline to act; or (b) with the client’s consent, obtain assistance from another individual who is authorized to provide representation or advice under section 91 of the Immigration and Refugee Protection Act or section 21.1 of the Citizenship Act and who is competent to provide those services. Interpretation With the client’s consent, a licensee who lacks the particular competence to provide specific services but overall is a competent consultant can obtain assistance from another authorized representative who has the specific competence. For example, licensees who hold a Class L3 – RCIC-IRB – Unrestricted Practice licence and licensees who are also paralegals licensed by the Law Society of Ontario are competent to represent clients before IRB tribunals (paralegals can practise before IRB tribunals under their paralegal licence). Cross-reference to service agreement requirement (ss. 24(3)(e) of the Code) to name those who may assist on a file. Requirements — services of another (2) If a licensee obtains assistance from another individual to provide the required immigration or citizenship consulting services, (a) the terms of the arrangement, as well as the name of the other individual who will be providing the services and the scope of the services, must be disclosed to the client in writing; and (b) any fees or disbursements in relation to the services provided by the other individual are subject to subsection 31(3). 36/70 Code of Professional Conduct – Interpretation Guide 2022-001 | ©2022 Maintaining competence 21 A licensee must maintain the level of knowledge and skills required for the class of licence that they hold. Interpretation A licensee is required to maintain the level of knowledge and skills under the Act and any regulations and by-laws made under the Act for the class of licence they hold as determined by the College. Section 10 of the College By-law describes the classes of licences as follows: a) Class L1 – RCIC – Conditional Practice; b) Class L2 – RCIC – Restricted Practice; c) Class L3 – RCIC – IRB – Unrestricted Practice; d) Class L4 – RISIA – Conditional Practice; and e) Class L5 – RISIA – Unrestricted Practice. This obligation to maintain an adequate level of knowledge and skills includes the College’s mandatory requirements to complete the New-Licensee Mentoring Program, to complete the applicable Practice Management Education (PME) courses, to satisfy the annual Continuing Professional Development (CPD) requirements, as well as complete any other additional trainings prescribed by the College. Only licensees who have been issued a Class L3 – RCIC-IRB – Unrestricted Practice licence on or after July 1, 2023, and licensees who are also paralegals licensed by the Law Society of Ontario have the knowledge and skills to represent clients before IRB tribunals. Delivering quality services 22 (1) When providing immigration or citizenship consulting services to a client, a licensee must (a) comply with the applicable deadlines and timelines for an application, expression of interest or proceeding; (b) conduct the client’s affairs in an efficient and cost-effective manner; (c) communicate with the client in a timely and effective manner; (d) demonstrate cultural sensitivity; 37/70 Code of Professional Conduct – Interpretation Guide 2022-001 | ©2022 (e) obtain assistance, when necessary, including by retaining the services of an interpreter or translator; and (f) if applicable, provide instructions and guidance on how the client may access online information regarding their application, expression of interest or proceeding, including any associated processing information. Interpretation The wording in this section requires a licensee to use “best efforts” and reflects the high standards of service expected of a licenced professional. The licensee MUST meet deadlines, operate in a cost-efficient manner, communicate effectively with the client, be culturally sensitive, retain a translator or interpreter if necessary and guide the client through the pertinent online information. Quality service means dealing with clients transparently in a respectful helpful way and providing a professional experience. To provide quality service a licensee must fully understand the client’s needs and communicate with the client regularly using the most appropriate and accessible means of communication for each client. Quality service means: Reliability – dependability to perform the promised services accurately and on schedule; Responsiveness – ability to listen to clients, willingness to help, efficiency; and Flexibility/adaptability – ability to change directions, overcome obstacles. Licensees are expected to meet all deadlines. The licensee should develop a service agreement with the client that is cost-efficient and outlines the process and expected timelines for the delivery of services. All services provided by the licensee must foster a relationship of trust (s.8 of the Code) and not take advantage of the client’s vulnerabilities. Demonstrating cultural sensitivity that respects the client’s race, ethnic origin, colour, religion, age, sex and all of the other prohibited grounds of discrimination as described in section 10 of the Canadian Human Rights Act will promote the delivery of quality services. In some cases, clients may be able to access online information regarding their application, expression of interest or proceeding. Licensees are required to inform clients if they can access their information online and to instruct the clients on the process. Delivering quality services also requires the licensee to walk the client through the necessary steps and to be available to answer any questions or concerns. 38/70 Code of Professional Conduct – Interpretation Guide 2022-001 | ©2022 A licensee is required to obtain the services of a translator or interpreter when needed or requested by the client and is obligated to conduct their due diligence to help to ensure the quality of these services. This should be included in the service agreement. Actions taken when representing client (2) When representing a client in respect of an application, expression of interest or proceeding, the licensee must ensure that all the necessary documents and information are, as applicable, properly prepared, signed and submitted. Interpretation It is the licensee’s responsibility to make sure all client documentation is correct, is filled in completely, is signed by the client and is submitted prior to the due date in the prescribed format. Licensees should have the documentation completed as early as possible before the date it is to be submitted. Missing information should be identified well in advance of submission deadlines so that steps may be taken to obtain the required documentation in a timely manner. The licensee must confirm with the client the date and time the documentation was submitted, and explain how the client can access their file through the IRCC online Portal. Keeping client informed (3) The licensee must provide timely information to the client in writing concerning the status of their case, including by (a) notifying the client when a document or inf