Reference no: EM133682218

Case Study

Jakub Kowalski recently obtained his College licence, and has opened an immigration practice in Red Deer, Alberta as a sole practitioner. Before taking the Queen's GDipICL Program, he worked for five years in the corporate immigration division of a large law firm in Edmonton. Their main practice area was obtaining work permits for foreign workers followed by Permanent Residence though Express Entry and the Provincial Nominee Programs.

Jakub decided that economic immigration would be the main focus of his new practice as well. He was confident he had enough knowledge and experience from his Queen's course, as well as the College mentoring program and his prior work experience.

One day, Syed Hussain, an old client Jakub had helped years ago at the law firm, emailed him. Syed had settled in Red Deer and was now a citizen himself. He was hoping to bring his brother Mohammed to join him in Canada. Mohammed was a pharmacy assistant, which the Alberta PNP program listed as an occupation in high demand. Syed attached Mohammed's resume which looked excellent for his work experience, education and English ability. Syed would pay all costs related to his brother's application.

Jakub was happy to assist. He sent Syed his standard Consultation Agreement for the initial consultation on his letterhead. It had the usual clause about the College's role as regulator, and other standard clauses. He offered Mohammed a Zoom consultation for $250 CAD for the purpose of "advising on pathways to Permanent Residence as a skilled pharmacy assistant". He asked Syed to insert Mohammed's contact information, have Mohammed sign the Consultation Agreement and send it back. Then he would book the meeting. With Mohammed's consent, Syed could attend as well.

At the consultation, it became clear that Mohammed met all the criteria to qualify for Alberta's Express Entry stream. Jakub then moved on to some admissibility questions.

Jakub learned that Mohammed had an impaired driving charge in Cairo in January 2018. He was leaving a bar when a police car parked outside unfortunately nabbed him as soon as he got into his vehicle. Mohammed wasn't even driving and pleaded not guilty. However, he was convicted and given a small fine - Egypt does not treat this as a very serious matter. He had forgotten about it ever since.

Jakub was not comfortable advising Mohammed on the impact of his criminal record as he had no first-hand experience in criminal admissibility matters. He told them Mohammed would need someone with experience in criminal admissibility on this. However, Syed was insistent they wanted Jakub; there was no one else they knew or trusted. Syed was certain it would not be a problem as it was a very minor incident, and Mohammed had no trouble with the law since. Plus, Alberta was really in need of pharmacy assistants.

Jakub was not so sure. He had limited exposure at the law firm to a couple of criminal matters but was never responsible for handling one himself. He recalled from his Enforcement course that impaired driving was a serious offence but also that people with any type of criminal record could apply for rehabilitation after 5 years. Five years had already passed, so it was likely fine. But he had never done a Rehabilitation Application himself and was not confident on that part.

Jakub explained the multiple steps in the process for Alberta Express Entry. First the applicant enters a profile in the federal Express Entry pool, indicating "Alberta" as a province of interest. Alberta selects applicants from the pool, based on occupation, point count and family connections, and sends them a Notification of Interest asking if they are interested in settling in Alberta. If so, they may receive a link inviting them to apply for an Alberta nomination through Alberta's portal. If approved by Alberta, they automatically get 600 points, which likely means they will receive an Invitation to Apply (ITA) in the next Express Entry draw. Then they have 60 days to file their full PR application (e-APR) under Express Entry. IRCC will assess inadmissibility at this point, including any Rehabilitation application filed by Mohammed.

Jakub came up with a plan, as he fully expected Mohammed would receive an Alberta nomination. They would apply for the Alberta nomination, and once obtained, Jakub would find another licensed practitioner with knowledge and experience in criminal admissibility to help with the criminal record aspect. That would entail an additional fee for the second licensee.

Mohammed and Syed were happy with this arrangement.

Jakub entered into a Service Agreement with Mohammed. Syed would pay the fees on his brother's behalf, and the Service Agreement contained a clause that Jakub could discuss the case with Syed. It also had a clause that if Mohammed received an Alberta nomination, Jakub would engage another licenced practitioner to assist.

Mohammed got the language test and Education Credential Assessment needed to submit his Express Entry profile, and everything proceeded according to plan over the next several months.

In December, Mohammed received a nomination certificate from Alberta, as expected. Jakub updated his Express Entry profile to get the 600 points. One week later, the Invitation to Apply (ITA) arrived allowing Mohammed to apply for PR. It was now time to engage the second practitioner.

Jakub contacted an RCIC specializing in criminal inadmissibility, Rosalie Gascon. He explained the facts in an email and asked Rosalie for a Zoom consultation about the record. Rosalie indicated her practice was to meet with the client first (without the consultant) to advise on the impact of the criminal record. She would not discuss his PNP case, as the impact of a record would be the same for any PR application. Only after that could she determine if she could assist on the PNP application.

Jakub explained this to Syed and Mohammed. They booked a Zoom consultation with Rosalie to discuss Mohammed's criminal charge and court proceedings in Cairo. When Rosalie learned that Mohammed had never actually paid his fine, she explained the implications of that. The 5-year time frame for eligibility to apply for Rehabilitation Approval begins when the sentence is completed. As Mohammed's sentence was never completed, he remained inadmissible for the criminal conviction and was not eligible to apply for Rehabilitation Approval. Therefore, obtaining PR under any economic category was not possible for him. Even if he paid the fine now, the 5 years would start now.

Syed emailed Jakub. They were shocked and very upset over the bad advice, months of wasted time and misplaced hopes in preparing to come to Canada - not to mention all the work and money they spent getting a useless language test and ECA documents. They demanded a full refund of the $3000 they already paid Jakub and indicated they would be filing a complaint with the College.

Question:

1. Discuss the scope of licence and scope of practice relevant to Jakub when he opened his practice. How did this scope of licence and scope of practice impact his ability to accept the initial consultation in Mohammed's case? How did his scope of licence and scope of practice bear on the criminal admissibility issue?

2. Consider the time immediately before the consultation took place, for example, one hour before. At that specific point in time, was Mohammed a client or a potential client of Jakub's? What about Syed? Explain your answer regarding both parties with reference to the Code and the payment for the file.

3. Based on the facts given, does the Consultation Agreement that Jakub provided for the initial consultation appear to meet the Code requirements? Explain your answer.

4. At what point did a competency issue first arise for Jakub? With reference to section 19(2)(a) of the Code, what was the nature of the issue and why was it is a competency issue? Your answer should indicate an understanding of the material set out in the "Scope of Practice" page in Module 3.

5. Did Jakub's plan to handle the PR application, given Mohammed's criminal record, comply with the Code or not? Explain your answer.

6. When Jakub received the email from Syed after their meeting with Rosalie, he was very upset. You are his good friend and colleague. Jakub has asked you what action he should take at this point in time, if anything. Explaining to him what he must do now to fulfil his ethical obligations under the Code. Be specific and precise enough to indicate you are aware of the key steps to follow.