Practitioners often find themselves reviewing rejected applications or hearings where it is painfully obvious that an individual’s previous representative was incompetent. In exceptional circumstances, such incompetence can result in a breach of procedural fairness. In order for incompetence of counsel to result in a breach of procedural fairness, it must be established that (1) counsel’s acts or omissions constitute incompetence and (2) that a miscarriage of justice resulted.
In the often cited case of Memari v Canada (Minister of Citizenship and Immigration), the Federal Court explained the principle in these terms :
.. With respect to the performance component, at a minimum, “the incompetence or negligence of the applicant’s representative [must be] sufficiently specific and clearly supported by the evidence” (Shirwa, above, at 60). With respect to the prejudice component, the Court must be satisfied that a miscarriage of justice resulted. Consistent with the extraordinary nature of this ground of challenge, the performance component must be exceptional and the miscarriage of justice component must be manifested in procedural unfairness, the reliability of the trial result having been compromised, or another readily apparent form.
While it is generally not very hard to prove the first prong of the test (incompetence) it is much more difficult to prove the second (miscarriage of justice).
This is largely a result of uncertainty over just when a miscarriage of justice occurs. Luckily, the Federal Court just released a decision titled Kim v. Canada which contains the following ratio:
Where the officer specifically refers to the lack of evidence, and where the submissions by the consultant are limited, this Court concludes that the failure to submit evidence causes a prejudice to the Applicants amounting to a miscarriage of justice.
Not only is this a very clear principle, it is also probably broader than what many practitioners believed constituted a miscarriage of justice. In an area of law where decisions take years, and unscrupulous individuals are allowed to represent applicants, this is definitely a good thing.