Fillable Printable Federal Court Affidavit Form - Canada
Fillable Printable Federal Court Affidavit Form - Canada
Federal Court Affidavit Form - Canada
Court File
No.:
T-1767-09
FEDERAL COURT
BETWEEN:
KATARINA ONUSCHAK
-and-
CANADIAN SOCIETY
OF
IMMIGRATION CONSULTANTS
AND THE BOARD OF DIRECTORS
OF
THE CANADIAN
SOCIETY OF IMMIGRATION CONSULTANTS
AFFIDAVIT OF JOHN KOURY
Applicant
Respondents
I,
JOHN KOURY,
of
the Municipality of North Cowichan, in the Province
of
British
Columbia, MAKE OATH AND SAY:
1.
I
am
a Public Interest Director of the Canadian Society of Immigration
Consultants (the "Society") and have been since 2007. I have
an
MBA degree, have
taken courses at the
Institute of Corporate Directors
and
have been undergoing
Corporate Governance training with the McMaster University Directors
College. I
am
also
an
elected official for the Municipality of North Cowichan. I was appointed Senior
Elections Officer ("SEO") for the most recent elections held by the Society
on
September 23-25, 2009 to fill two vacancies
on
the Society's Board of Directors (the
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"2009. Election") and as such have knowledge
of
the matters herein deposed. I have
personal knowledge
of
the facts stated herein, except where I have been informed
of
such facts, in which case I have stated the source
of
such facts and believe such facts
to be true.
2.
I have read the within Application Record
of
the Applicant, Katarina Onuschak
("Onuschak"), including her affidavit sworn November 25, 2009 in support of her
Application for Leave and for Judicial Review (the
"November 25
th
Affidavit"). I have also
read the Application Record
Onuschak filed earlier
in
a separate Application for Leave
and for Judicial Review,
Court File No. 1425-09, including her affidavit sworn August
25,
2009 (the "August 25
th
Affidavit") to judicially review her ineligibility
to
run as a candidate
in
the 2009 Election. Many
of
the allegations
in
the August 25
th
Affidavit regarding the
2009 Election and the Society's Complaints & Discipline Department's ongoing
investigation
of
Onuschak are made in her November 25
th
Affidavit. I have responded to
the August 25
th
Affidavit in a separate affidavit filed her earlier Application.
3. As a general response to
Onuschak's November 25
th
Affidavit, I say as follows:
(a) the allegations in her affidavit contain a number
of
material omissions and
misstatements
of
fact. In addition, many
of
the allegations are bald
assertions made without any substantiating information
or
documents;
(b) many
of
her complaints about the conduct
of
the Society and the rules it
has implemented, were made
in
an earlier application for judicial review
commenced by a trade association
in
which she serves on the Board
of
Directors, the Canadian Association
of
Professional Immigration
Consultants,
("CAPle"), Court File No. T-1304-08, that was struck out by
this
Court; and
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(c) Onuschak seeks to quash the results of the 2009 Election and to have this
Court declare her eligible to
run
in
a new court-ordered election. I believe
the election process was fair. However,
on
the basis
of
her own
arguments, Onuschak would still be ineligible to run in the
2009 Election
as a result
of
her past suspension from the Society.
4.
Set forth below is a detailed response to Onuschak's allegations.
A.
THE SOCIETY'S AUTHORITY
AS
THE SELF-REGULATORY BODY
OF
IMMIGRATION CONSULTANTS
(i) The Society's Mandate To Regulate Members in Accordance with Its
Policies
5.
The Society is the self-regulating body of immigration
conSUltants.
The Society's
mandate
is
to regulate
in
the public interest its members in accordance with the policies
and
procedures established by the Society. Pursuant to its Letters Patent issued
October
8,
2003, the purposes
of
the
Society are, among
ot,her
things:
(a) To regulate
in
the public interest eligible persons who are members
of
the
Society and advise or represent individuals, groups and entities
in
the
Canadian immigration process
("Immigration Consultants"), as determined
in
accordance with the policies and procedures published by the Society
from time to time;
(b) To establish a code of conduct to be followed by Immigration Consultants
regulated by the Society;
(c) To establish complaint and disciplinary procedure
in
respect
of
the
conduct
of
Immigration Consultants regulated by the Society;
(i) To do all such things as may
be
necessary or incidental to the furtherance
of
the foregoing objects and purposes.
83
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Attached
as
Exhibit
"A" is a true copy of the Society's Letter Patent.
(ii) The Need
for
Self-Regulation
6.
The presence
of
unqualified
and
unscrupulous immigration consultants
in
Canada
and
the failure to provide for a scheme
of
self-regulation has long
been
recognized as a serious problem by public interest groups, the federal government, the
RCMP.
the Law Reform Commission of Canada, the Canadian Bar Association,
provincial
law societies, and immigration consultant organizations.
7.
Unregulated
and
unscrupulous immigration
conSUltants
cause significant
harm
not only to immigrant and refugee applicants. but also to the general public, the integrity
of Canada's immigration system, the
"good name
of
Canada". and Canada's national
security and economic interests.
(iii) The Supreme
Court
of
Canada Decision
in
Mangat
8.
In
October 2001, the Supreme Court
of
Canada
in
Law Society
of
British
Columbia
v.
Mangat. considered whether the Federal Government
had
jurisdiction to
regulate immigration
conSUltants.
9.
The Supreme Court
of
Canada
held
that Parliament's constitutional jurisdiction
in
the areas
of
"aliens
and
naturalization" gave Parliament power to regulate who
mayor
may not appear
in
immigration proceedings.
84 .
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10.
The Supreme Court
of
Canada
noted
that the Governor-in-Council had statutory
authority under the then
Immigration Act
to
enact regulations to regulate those persons
who wish
to
appear
in
immigration proceedings by requiring them
to
obtain a license
from a prescribed body. Attached as Exhibit
"8"
is a true copy
of
the Mangat decision.
(iv) The Self.Regulatory Scheme
11.
In response to
an
Advisory Committee report provided
to
the
Minister of
Citizenship
and
Immigration (the "Minister"):
(a) the Society was created
to
serve
as
the self-regulatory body
to
regulate its
members
in
the public interest;
and
(b) regulations were enacted
by
the Governor-in-Council, pursuant to her
statutory authority under the
Immigration
and
Refugee Protection
Act
("IRPA"), that provided that only members
of
the Bar of a province,
members
of
Chambre des notaires
du
Quebec
and
immigration
consultants who are members
of
the Society will, for a fee,
be
permitted
to
advise, consult with,
and
represent individuals who are the subject of
an
immigration proceeding.
12.
The Society was incorporated as a corporation without share capital under the
Canada Corporations Act, R.S.C. 1970,
c.
C-32.
13.
The purpose
of
the Society, as set out
in
its Letters Patent, is
to,
among other
things,
"regulate
in
the public interest" members of the Society, who may advise or
represent persons
or
groups
in
immigration matters, "as determined
in
accordance with
the
policies
and
procedures published by [the Society] from time to time".
14.
The Society's Letters Patent mandate the Society
to,
among other things,
85
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establish a
code
of conduct, a complaint
and
disciplinary procedure, a national
education program,
and
to do all such other things as may be necessary or incidental
to
the
furtherance of the Society's objects
and
purposes.
15.
Pursuant to
IRPA,
the Regulations Amending the Immigration and Refugee
Protection Regulations
(the "Regulations")
was
enacted that provided that only
consultants who are members of the
Society
may,
for a fee, represent, consult with or
advise clients
in
connection with immigration matters.
16.
As
described
in
the Regulatory Impact Analysis Statement ("RIAS") that
was
published
in
advance of the promulgation of the Regulations
by
the Federal
Government, the Regulations that recognize
CSIC
as
the regulatory
body,
were
designed
to
address the problem of unscrupulous and/or incompetent immigration
consultants that have
been
detrimental to clients, to the consulting profession, to the
reputation of the
Canadian immigration program
and
to Canada's national security.
Attached at
Exhibits "e"
and
"0",
respectively, are true copies of the
RIAS
published
on
December 13, 2003
and
April 13, 2004.
17.
The Society's authority
and
mandate to regulate its members
and
establish
its
own
rules,
policies
and
standards were confirmed last year by the Federal Court of
Appeal
in
The Law Society
of
Upper Canada
v.
The
Canadian Society
of
Immigration
Consultants
et
al.
The Federal Court of Appeal
held
that the Society
was
delegated the
power
by
Parliament to regulate the immigration consultant profession
in
the public
interest. The
Court of Appeal noted that Parliament recognized the advantages of
86
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leaving to the Society the ability to enact the details and rules as to how the Society
governs itself and address issues such as discipline, education and code of conduct.
In
this regard, part
of
the Society's mandate is to ensure that its members are competent
and
have the highest possible standard
of
integrity
in
order to maintain confidence
in
Canada's immigration system. Attached as
Exhibit
"E",
is a true copy
of
the Federal
Court of Appeal decision released July
18.
2008 in respect
of
the
Law
Society matter
B.
THE
SOCIETY'S OPERATIONS
18.
The Society is governed by a nine member Board
of
Directors. Pursuant to its
delegated
legislative powers
and
the Society's By-laws, the Board
of
Directors has
broad
rule
and
policy making powers
in
order to carry out its operations
and
meet its
mandate. This
includes establishing eligibility criteria for directorship, setting the
process for elections, and prescribing the
rules for the form and conduct
of
elections.
Attached as Exhibit B
of
the November 25th Affidavit is a copy of the Society's By-laws.
19.
To fulfill its mandate, the Society operates largely through a number of standing
committees including the Audit Committee, the Education and Standards Committee,
the Ethics and
Discipline Committee. the Governance Committee, the Membership
Committee and the Nominating Committee. The members
of
the Board serve
on
a
number
of
the standing committees.
20. These Committees are crucial to the Society's ability to govern the profession
in
the public interest. The Committees address crucial issues relating to the governance
of
the profession.
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21.
Through these Committees, the Society, among other things, has developed and
implemented:
(a) membership requirement criteria;
(b) a Code
of
Conduct;
(c) a Complaint and Discipline Policy;
(d)
an
Errors & Omissions Insurance requirements;
(e) a compensation fund;
(f) competency tests
and
testing programs;
(g) Continuing Professional Development education and training programs;
and
(h)
rules and policies regarding the election of Directors and nomination
criteria for directorship.
Attached as Exhibits
C and D
of
the Affidavit of Humera Ahsan sworn July December
4,
2009 found in Onuschak's Application Record, T-1425-09, are copies of the Society's
Rules
of
Professional Conduct and Complaints and Discipline Policy, respectively.
22.
All members
of
the Society are, among other things, required to take Continuing
Professional Development programs, abide by the
Soci
~
ty's
Rules of Professional
Conduct and are subject to the Society's Complaints & Discipline Policy.
C.
THE SOCIETY'S ELECTION POLICIES
23.
There have been 3 elections for
ConSUltant
Directors since the inception
of
the
Society. Elections have been held
in
2006, 2007 and 2008. Prior to each election, the
88
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Board of Directors approves rules to govern each election which are contained
in
Election Packages provided to each candidate in advance
of
the election.
(iJ
Eligibility Criteria
24.
The criteria for a member to qualify
as
a candidate for a consultant directorship
established by the Nominating Committee have been
as
follows:
• be a current Full Member
in
"Good Standing"
of
the Society;
and
• have completed all requirements for full membership; and
• completed the requirements for nomination;
and
• continue to meet the requirements for the nomination throughout the election
period; and
• not be
in
default
of
payment of any membership fees; and
• not had his/her membership revoked or suspended within the last two years
preceding the date
of
the election; and
• not have any open complaints before the Complaints
and
Discipline
Department; and
• at least (18) years
of
age with power under law to contract.
25.
These criteria,
and
in
particular the criterion that a member not be the subject
of
an
investigation by the Society's Complaints and Discipline Policy, have for the most
part been
in
place since the Society's first election
in
2006. Attached as Exhibit "F" is a
true copy
of
the 2006 Candidates' Package setting out the eligibility criteria for
directorship.
26.
These criteria to qualify as a candidate for a Consultant Directorship were
89
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10-
identical to the criteria applied for the 2007 election, save and except that the criteria
that a member
"not have any open complaints before the Complaints and Discipline
Department" was changed to
"not have any matters under investigation before [the
Society's] Complaints and
Discipline Department". A true copy
of
the 2007 Candidates'
Package
is
attached to my affidavit and marked as
Exhibit
"Gil.
27. The criteria to qualify as a candidate for a Consultant Directorship for the 2008
election were identical as the criteria applied in the 2007 election. A true copy
of
the
2008 Candidates' Package is attached to my affidavit and marked as
Exhibit
"HI!.
28. Those members who had their membership revoked or suspended within the last
2 years preceding the date
of
the 2008 Election
or
who had an open complaint before
the Complaints and Discipline department did not qualify as a candidate for Consultant
Director. This criteria has been
in
place since 2006.
(ii) Electronic Voting
29.
The elections conducted in 2006, 2007 and 2008 were conducted by electronic
balloting.
30.
The Society is a national regulatory body whose members reside across Canada
and overseas.
In order to facilitate participation by its members in the electoral process,
the Board
of
Directors decided to have electronic voting. It would be costly for our
members to vote
in
person and would impact participation
if
electronic voting was not
90
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-
permitted.
31
. I
am
aware that Onuschak previously
ran
for election
in
2007 but was not
elected. Onuschak, at that time, took
no
action to judicially review the same eligibility
criteria
and
method
of
voting that she complains
of
now.
D.
THE
2009
ELECTION
32.
The Board
of
Directors is composed
of
nine Directors from across Canada
as
follows:
(a)
three from the Province of Ontario;
(b) three from Western Canada (Alberta, British Columbia, Manitoba
and
Saskatchewan);
(c) two from the Province of Quebec;
and
(d)
one from any other place inside or outside Canada.
33.
Six
of
the Directors are elected from the ranks
of
Consultant members. These
are
"ConSUltant
Directors" according to the By-laws. The other three members
of
the
Board
of
Directors are "Public Interest Directors".
34.
Each year, two Consultant Directors are elected for a term
of
three years each.
After the election
of
the Consultant Directors, one Public Interest Director
from
the
jurisdiction that did not elect a Consultant Director, is appointed to a three-year term
by
the two other Public Interest Directors
on
the Board.
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