Immigration and Refugees Law
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Can your immigration refusal be overturned because your previous lawyer or consultant made a mistake? In limited circumstances, yes. The Federal Court applies a three-part test: (1) as a prerequisite, the former representative must have been given notice of the allegations and a reasonable opportunity to respond; (2) the representative’s conduct must have been negligent or incompetent; and (3) that conduct must have resulted in a miscarriage of justice (El Khatib v Canada (Citizenship and Immigration), 2025 FC 49). Pax Law Corporation reviews files where a prior representative’s error may have cost an applicant their status.
| Requirement | Explanation | Source |
|---|---|---|
| Performance | Former representative’s conduct was negligent or incompetent | R v GDB, 2000 SCC 22; El Khatib, 2025 FC 49 |
| Prejudice | A miscarriage of justice—usually a reasonable probability the result would have differed, or a compromised fair process | R v GDB; El Khatib |
| Notice to former representative | The allegation must be put to the former counsel or consultant, who may respond | Federal Court Procedural Protocol Re: Allegations Against Counsel or Other Authorized Representative |
| Applicant’s responsibility | Applicants are generally bound by their representative’s choices | Federal Court case law |
The general rule is that applicants are bound by the actions of the representative they chose. The Court will not overturn a decision simply because a different strategy might have worked better. Incompetence arguments succeed only in “extraordinary” circumstances, where the error is clear and the consequences were serious.
The Federal Court’s procedural protocol requires the applicant’s new lawyer, before raising the issue in the leave application, to notify the former representative in writing with a concise summary of the allegations, waive any applicable privilege and provide a copy of the protocol. If the allegations are pursued, the former representative must be served with the perfected application and later with any order granting leave. Evidence such as a sworn affidavit, the communications with the former representative, and any complaint to the regulator should be included. Failing to follow the protocol can be fatal to the argument.
Lawyers are regulated by provincial law societies, such as the Law Society of British Columbia and the Law Society of Ontario. Regulated Canadian immigration consultants are licensed by the College of Immigration and Citizenship Consultants. A complaint to the appropriate regulator is separate from the court case but can support the evidence that a serious error occurred.
Applicants are generally responsible for what is filed on their behalf, and a misrepresentation finding can stand even if a representative caused the problem. However, where an applicant was genuinely unaware and acted reasonably, the circumstances may be relevant to the analysis and to fairness arguments.
It is not always mandatory, but the Court will expect evidence that the representative was notified and had a chance to respond.
No. Reasonable strategic choices, even unsuccessful ones, are generally not incompetence.
Yes. Judicial review deadlines still apply (15 or 60 days under IRPA s 72(2)(b)), although an extension of time may be requested where the representative’s error caused the delay.
If you believe a previous representative’s mistake led to your refusal, contact Pax Law Corporation for a file review.
The information presented is for informational and educational purposes only and may not be accurate. This information does not replace getting legal advice from a qualified, practicing lawyer. If you are facing a legal dilemma, you should make an appointment and consult with one of our licensed and practicing lawyers.
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