Serwaah hired an immigration consultant, Manuel. He applied for Permanent Residence for her as a Provincial Nominee through a paper application over a year ago.
On June 1st, Manuel told Serwaah he just received a letter from IRCC stating its preliminary finding that her medical condition would cause an “excessive demand” on Canada’s health care system. Thus, she may be inadmissible on health grounds. This is called a procedural fairness (PF) letter.
Manuel assured Serwaah not to worry; that he had done several of these cases successfully. He would send a submission to IRCC within the 30-day deadline showing that Serwaah was not inadmissible as her condition was being well-managed by her current specialist and the costs were within the allowable threshold. He would be in touch with Serwaah shortly about getting an updated letter from the specialist on her prognosis and treatment costs.
On June 2nd Manuel experienced a medical emergency that required him to take several weeks off for surgery and recovery. He called Jim, an RCIC friend practicing at another firm, who agreed to help on Serwaah’s case pro bono. Manuel was very grateful and told Jim to pick up the file from his office and that Serwaah may require more information from her doctor. Manuel’s assistant could provide him with anything else he needed, including Manuel’s letterhead to submit the update. Jim should sign his own name “on behalf of Manuel Perreira”. Jim assumed Manuel had told Serwaah about this arrangement.
Serwaah called Manuel’s office the following week. She was told he taken a brief medical leave and that Jim was looking after her file. She called Jim, who assured her there was still lots of time and he would get to it as soon as he finished up some urgent cases. She asked about the information from her doctor as Manuel had mentioned, which might take some time to get, and whether they should set up a meeting to ensure Jim had everything he needed. Jim was non-committal but promised to let her know if he needed anything.
As the deadline approached, Serwaah left multiple messages for Jim that she was concerned she had not heard from him and did not know the status of her file.
When Manuel returned to work on July 8th, there was a panicked phone message from Serwaah. He called Jim who apologized profusely for submitting the response three days after the deadline. He did not yet have time to inform Serwaah it was sent.
Manuel looked at the material Jim submitted and was surprised to see Jim had not included any medical documentation and thought to himself “Good grief – I need to fix this”.
1) Using the Code, identify the two most significant ethical violations potentially resulting in refusal of the application that Manuel has committed up to the point where he returned to work. Explain precisely when, and how, his actions or omissions breached each of the two provisions you identify.
2) Considering the definition of a “client” in s 1(1) of the Code, is Serwaah a client of Jim’s? Explain why or why not with reference to this definition. Is the fact of Jim doing this for free relevant to whether Serwaah is a client? What about the fact there is no service agreement with Jim?
3) It would be possible for Manuel to request an extension of time from IRCC to submit the Procedural Fairness response; that request would likely be granted. In terms of “efficient and cost-effective” services required under s. 22(1)(b), would this be a good option? why or why not? Keep in mind that Manuel is not fully incapacitated (the College has a system for that, which does not apply here).
4) Besides the main ethical violations as per Question 1, Manuel has failed to meet at least three other important duties to his client Serwaah. Identify at least three additional provisions of the Code applicable, and what Manuel could have done to avoid breaching them. You can identify more if you see them.
5) Assuming that Jim is willing to help Manuel, what sections of the Code would guide them to properly share the work in these circumstances? Use these provisions to explain what Manuel and Jim should do. Keep in mind we do not have access to Manuel’s service agreement, so we do not know what it says.
6) Manuel now knows the material submitted by Jim was not sufficient to protect Serwaah’s interests, and her file may be rejected as a result. Once he discovers this error – what are Manuel’s duties under the Code?
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