Case Study 1

Carly Charbonneau is an immigration consultant in Calgary specializing in bringing skilled workers from all over the world to work in the oil and gas sector. For over ten years, she has represented Success Oil and Gas Ltd, the Canadian subsidiary of a French company with operations in the Fort McMurray area. Her contact there is Miranda Sinclair from the HR department, who signs all her service agreements.

Success Oil and Gas now wants to obtain a work permit for a chemical engineer to work for two years on a sulphur recovery project. Carly determines that the company will first need an LMIA (Labour Market Impact Assessment) from Employment and Service Development Canada, which is essentially the permission to hire a foreign national for the position.

Carly has her standard service agreement with the company to obtain the LMIA, which has now been approved. She then entered into a service agreement with Jacques Cousteau to obtain his work permit. As always, the company is paying the professional fees and disbursements in connection with the work permit. However, Jacques alone is her client on the service agreement for the work permit as he alone has an application seeking approval by the IRCC. In keeping with her practice when the employer is paying, Carly's service agreement with Jacques contains a clause that he consents to Carly sharing any relevant information concerning the work permit application with the employer.

While completing Jacques' work permit forms, Carly learns that he has a conviction for impaired driving in Paris in 2017. Carly is taken aback. She had sent Jacques her standard questionnaire at the outset, before signing the service agreement, to collect the necessary information and properly assess any issues. It included a question on whether he had any criminal record, and Jacques had answered "No". On that basis, she had issued a quote and taken on the file. However, when she sent him the draft forms for review, upon seeing the immigration question about criminal records, Jacques decided he should mention this to Carly "just in case it is a problem". Jacques said he believed it was too minor to report initially, especially as he already paid the court fine and it was over. In any case, he does not want to mention this to his employer - he is too embarrassed.

Carly knows this will make Jacques inadmissible. It means he will need a TRP (Temporary Resident Permit) as an inadmissible person, in addition to the work permit. She has done several TRPs and knows they involve considerably more work, time, and cost. Even more of a concern is that approving a TRP is a very discretionary decision on the part of the officer; that decision must be made in Jacques' favour first before they will consider his work permit. This makes granting the work permit less predictable.

Carly pulls out the Code to consider her next steps.

Discussion Questions

Question#1 : Assuming that Jacques may be unable to come to Canada due to his inadmissibility, consider the impacts on (1) the company and (2) Carly. In light of these, what office procedures might Carly adopt to reduce the possibility of being in this situation in the future?

Question#2: Using the definition of "conflict of interest" in section 1(2) of the Code, would you say Carly's conflict of interest at this point is actual or potential? Explain. What is her immediate next step and why? Your answer should include who her clients are, and what role confidentiality plays in this scenario.

Question#3: Sections 5, 6, 15(1), and 28(3) of the Code all bear on this scenario. Carly's plan will necessarily depend on whether Jacques is willing to disclose this offence to the company. Either way (if Jacques will not disclose; if Jacques will disclose) can you devise a plan in each case for Carly that would fulfill her duties to both parties? Be specific.