Law Society of British Columbia v. Mangat
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Law Society of British Columbia v. Mangat, [2001] 3 S.C.R.
113 is a leading Supreme Court of Canada
decision where the Court held that a non-lawyer may be given the power to practice law
under a federal statute even if it is contrary to a provincial
legal profession legislation.
consultant carrying on his work through an immigration consulting company (“Westcoast”). He had not studied law in Canada and was not a member of the B.C. Law Society. M and other Westcoast employees engaged in a number of activities involving immigration proceedings, including appearing as counsel or advocate on behalf of aliens, for or in the expectation of a fee from the persons for whom the acts were performed, before the Immigration and Refugee Board
(“IRB”).
The Law Society brought an application seeking a permanent injunction against M and Westcoast to prevent them from engaging in the ongoing practice of law, in contravention of the B.C. Legal Profession Act. M and Westcoast admitted that they were engaged in the practice of law within the meaning of s. 1 of the Legal Profession Act, but contended that their conduct was sanctioned by ss. 30 and 69(1) of the Immigration Act, which permit non-lawyers to appear on behalf of clients before the IRB. The judge issued the injunction on the grounds that ss. 30 and 69(1) of the Immigration Act did not authorize the practice of law. Alternatively, she would have granted the injunction on the basis that the provisions were ultra vires Parliament. The Court of Appeal set aside the injunction. The central issues raised by this appeal are whether ss. 30 and 69(1) of the Immigration Act are intra vires Parliament, and whether s. 26 of the Legal Profession Act, which prohibits a person, other than a member of the Law Society in good standing or a person listed in the exceptions, to engage in the practice of law, is constitutionally inoperative to persons acting under ss. 30 and 69(1) of the Immigration Act and its associated Rules and Regulations. In this Court, the respondent S was added to the proceedings on the basis that she is an immigration consultant and was engaged in the same activities as M, given that M became a member of the Alberta Law Society soon after leave to appeal was granted by this Court.
Given the clear overlap of laws, Gonthier considered whether to apply the paramountcy doctrine or the inter-jurisdictional immunity doctrine to resolve the conflict. He found that the paramountcy doctrine was more appropriate as there was a clear double aspect
in the law.
The first part of the paramountcy test asks whether there is an operational conflict where the provincial law frustrates the purpose of the federal law. Gonthier found that the purpose of the federal law was to authorize non-lawyers to appear as counsel in immigration tribunals for a fee, but the provincial law made exercise of the authority impossible. Consequently, the paramountcy doctrine can be invoked and the provincial law was held to be inoperative to the extent of the conflict.
Supreme Court Reports
The Supreme Court Reports is the official reporter of the Supreme Court of Canada. Since the creation of the Supreme Court, all of its decisions have been published in the Reports, in both English and French. The first volume was published in 1877 containing the first case ever heard by the...
113 is a leading Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
decision where the Court held that a non-lawyer may be given the power to practice law
Practice of law
In its most general sense, the practice of law involves giving legal advice to clients, drafting legal documents for clients, and representing clients in legal negotiations and court proceedings such as lawsuits, and is applied to the professional services of a lawyer or attorney at law, barrister,...
under a federal statute even if it is contrary to a provincial
Provinces and territories of Canada
The provinces and territories of Canada combine to make up the world's second-largest country by area. There are ten provinces and three territories...
legal profession legislation.
Background
The respondent M was an immigrationImmigration to Canada
Immigration to Canada is the process by which people migrate to Canada to reside permanently in the country. The majority of these individuals become Canadian citizens. After 1947, domestic immigration law and policy went through major changes, most notably with the Immigration Act, 1976, and the...
consultant carrying on his work through an immigration consulting company (“Westcoast”). He had not studied law in Canada and was not a member of the B.C. Law Society. M and other Westcoast employees engaged in a number of activities involving immigration proceedings, including appearing as counsel or advocate on behalf of aliens, for or in the expectation of a fee from the persons for whom the acts were performed, before the Immigration and Refugee Board
Immigration and Refugee Board of Canada
The Immigration and Refugee Board of Canada is an independent administrative tribunal. The IRB is responsible for applying the Canadian federal Immigration and Refugee Protection Act and for making decisions on immigration and refugee matters...
(“IRB”).
The Law Society brought an application seeking a permanent injunction against M and Westcoast to prevent them from engaging in the ongoing practice of law, in contravention of the B.C. Legal Profession Act. M and Westcoast admitted that they were engaged in the practice of law within the meaning of s. 1 of the Legal Profession Act, but contended that their conduct was sanctioned by ss. 30 and 69(1) of the Immigration Act, which permit non-lawyers to appear on behalf of clients before the IRB. The judge issued the injunction on the grounds that ss. 30 and 69(1) of the Immigration Act did not authorize the practice of law. Alternatively, she would have granted the injunction on the basis that the provisions were ultra vires Parliament. The Court of Appeal set aside the injunction. The central issues raised by this appeal are whether ss. 30 and 69(1) of the Immigration Act are intra vires Parliament, and whether s. 26 of the Legal Profession Act, which prohibits a person, other than a member of the Law Society in good standing or a person listed in the exceptions, to engage in the practice of law, is constitutionally inoperative to persons acting under ss. 30 and 69(1) of the Immigration Act and its associated Rules and Regulations. In this Court, the respondent S was added to the proceedings on the basis that she is an immigration consultant and was engaged in the same activities as M, given that M became a member of the Alberta Law Society soon after leave to appeal was granted by this Court.
Opinion of the Court
Justice Gonthier wrote the opinion for the majority. He held that the sections of the Immigration Act was a valid subject matter of the federal government, and that Reyat was allowed to practice law in front of the Board under the provisions of the Immigration Act.Given the clear overlap of laws, Gonthier considered whether to apply the paramountcy doctrine or the inter-jurisdictional immunity doctrine to resolve the conflict. He found that the paramountcy doctrine was more appropriate as there was a clear double aspect
Double aspect
Double aspect is a legal doctrine in Canadian constitutional law that allows for laws to be created by both provincial and federal governments in relation to the same subject matter. Typically, the federalist system assigns subject matters of legislation to a single head of power...
in the law.
The first part of the paramountcy test asks whether there is an operational conflict where the provincial law frustrates the purpose of the federal law. Gonthier found that the purpose of the federal law was to authorize non-lawyers to appear as counsel in immigration tribunals for a fee, but the provincial law made exercise of the authority impossible. Consequently, the paramountcy doctrine can be invoked and the provincial law was held to be inoperative to the extent of the conflict.