Quick answer: Where former counsel’s incompetence has damaged a Canadian immigration file, the Federal Court can set aside the decision under R v G.D.B. and Galyas. A practitioner’s guide to building a successful incompetence argument, with a composite success pattern.
Where an immigration decision — a negative Pre-Removal Risk Assessment (PRRA), a refused humanitarian and compassionate application, or a Refugee Appeal Division decision — has been damaged by the incompetence of a former licensed representative, the Federal Court of Canada has the power to set that decision aside. The framework for doing so is well established, and where the record is properly built, the Federal Court has ordered the decision remitted for redetermination on a proper record.
This article explains the framework, describes how experienced counsel builds a successful G.D.B. / Galyas application, and closes with an anonymized composite pattern that illustrates the record required.
The controlling authorities
The Supreme Court of Canada set out the underlying framework in R v G.D.B., 2000 SCC 22. The Federal Court adopted the framework for immigration matters in Galyas v Canada (Citizenship and Immigration), 2013 FC 250 at paragraphs 83–84. The Federal Court has since applied the G.D.B. / Galyas framework across the range of immigration decisions where former counsel’s conduct is called into question.
The three components
1. Notice to former counsel. Current counsel gives former counsel formal notice of the allegations and a reasonable opportunity to respond. This is a procedural precondition. Where notice is served correctly and in accordance with the Federal Court’s Consolidated Practice Guidelines, this component is met.
2. Performance. Current counsel demonstrates that former counsel’s conduct fell below the standard of a reasonably competent licensee. This is a comparison against the professional standard at the time, based on the evidence of what was done and what was not done.
3. Prejudice. Current counsel demonstrates that, but for the deficient representation, there is a reasonable likelihood the outcome would have been different. This connects the performance failure to the specific reasoning of the underlying decision and to the evidence that would have addressed it.
Where each component is properly documented, the Federal Court has the record to grant relief.
Building the procedural record
The Federal Court’s Consolidated Practice Guidelines for Citizenship, Immigration and Refugee Protection Proceedings set out the procedural steps a party takes before advancing an incompetence argument. Experienced counsel builds this record thoroughly:
- Notice of Allegations of Professional Incompetence — a detailed, particularised written notice to former counsel identifying each allegation with specificity, and giving former counsel a reasonable opportunity (typically seven days) to respond;
- Waiver of Solicitor-Client Privilege — signed by the client and filed with the record, permitting current counsel and the Court to review the former counsel’s file;
- Notice to the regulatory body — the College of Immigration and Citizenship Consultants or the applicable law society — where a regulatory complaint is contemplated; and
- Filing of the Notice and any Response as part of the perfected Federal Court record.
Where these procedural steps are complete, the Federal Court can turn to the substantive analysis.
Building the performance record
The performance analysis is grounded in evidence. Current counsel documents what former counsel did — and, critically, what former counsel did not do — through:
- The applicant’s affidavit, describing communications with former counsel, evidence provided, questions asked and not asked, and the applicant’s own understanding at the time;
- Documentary evidence — retainer agreements, intake forms, WhatsApp messages, email correspondence, invoice records — that shows the pattern of the relationship and the record former counsel actually built;
- The underlying decision and any reasons that reference specific gaps former counsel should have addressed; and
- Where appropriate, evidence from a witness — a family member or friend who observed relevant meetings.
Successful performance records identify specific, verifiable failures — a specific document not requested, a specific legal issue not identified, a specific right not communicated. General allegations of “poor service” do not satisfy this branch. Specific, documented failures do.
Building the prejudice record — the miscarriage of justice
The prejudice branch is where the incompetence argument becomes decisive. Current counsel builds a direct evidentiary chain among three elements:
- The decision-maker’s stated concern — often reflected explicitly in the reasons or in the officer’s contemporaneous Notes to File. For example, where a PRRA officer expressly identified “the absence of personal evidence post-dating the RPD decision” as the key concern, that is the identified evidentiary gap;
- The evidence that could have addressed that concern — specific documents, statements, or expert reports; and
- The availability of that evidence at the relevant time — documented by the applicant’s affidavit, with corroborating attachments where possible.
Where the evidentiary chain is complete, prejudice is established with concreteness. The Federal Court is presented with a case in which the applicant possessed the evidence, former counsel did not gather or file it, and the decision-maker refused the application on exactly that gap.
A composite success pattern
Consider a composite pattern from Federal Court practice. An applicant retained a licensed immigration consultant to prepare a PRRA. The consultant filed a brief representations letter and a narrative that did not include the applicant’s post-RPD personal evidence. The PRRA was refused. The officer’s Notes to File expressly identified the absence of personal, post-RPD evidence as the operative concern.
New counsel is retained. On careful file review, new counsel identifies that:
- The applicant had, at the time of the PRRA submission, five key documents that would have addressed the officer’s identified concern: a foreign notarised declaration from a close family member, two official court letters, a criminal court conviction ruling naming the applicant as the complainant, and a national-media article corroborating the applicant’s account;
- The applicant is a professional in another field (an engineer, for example) with no legal training and no reasonable ability to identify these documents as legally material to a PRRA;
- The consultant’s file contains no record of a documented request to the applicant for these categories of evidence.
New counsel takes each of the procedural steps set out in the Consolidated Practice Guidelines: serves the Notice of Allegations on the consultant, files the applicant’s waiver of solicitor-client privilege, and gives the consultant seven days to respond in writing. Any response is filed with the Federal Court record.
On judicial review, current counsel presents a memorandum that: identifies the specific performance failures with reference to the documentary evidence; constructs the direct chain between the PRRA officer’s stated concern, the evidence the applicant possessed, and the consultant’s failure to gather or file it; and demonstrates that the applicant, as a lay person, could not have been expected to identify the missing evidence.
On this record, the Federal Court has the basis on which to grant relief. The G.D.B. / Galyas threshold is met. The underlying PRRA decision is set aside, and the file is remitted for redetermination by a different officer on a proper record.
This is the record that successful incompetence arguments are built on. It requires early identification of the missing evidence, precise procedural compliance, and the judgment to connect each element of the framework to the specific facts of the file.
Regulatory complaints are a separate decision
A Federal Court incompetence argument and a regulatory complaint to the applicable regulator (the College of Immigration and Citizenship Consultants or the Law Society) are independent processes with different standards and different consequences. Some clients pursue both; some pursue only one. The choice belongs to the client, on the informed advice of current counsel.
Frequently asked questions
What is the legal test for setting aside an immigration decision on the basis of counsel incompetence?
The Federal Court applies the framework from R v G.D.B., 2000 SCC 22, adopted for immigration matters in Galyas v Canada, 2013 FC 250. The applicant must establish (i) formal notice to former counsel, (ii) a performance failure below the standard of a reasonably competent licensee, and (iii) prejudice — a reasonable likelihood the outcome would have been different but for the deficient conduct.
Do I have to file a regulatory complaint against former counsel to advance a Federal Court incompetence argument?
No. The Federal Court’s Consolidated Practice Guidelines require notice to the regulator where a complaint is contemplated, but do not require a complaint to be filed as a precondition to the Court argument.
What if former counsel refuses to respond to the Notice of Allegations?
Former counsel’s failure to respond within the required period is not, by itself, a bar to the argument. The Federal Court will consider the reasons for the failure to respond and the overall record.
What is the consequence of a successful G.D.B. / Galyas finding?
The Federal Court can set aside the underlying decision. Successful cases typically result in the file being remitted for redetermination by a different decision-maker on a proper record. The applicant then has the opportunity to have the decision made on the full evidentiary picture.
How long do I have to raise counsel incompetence after a negative PRRA?
The application for leave and for judicial review of the PRRA must be filed within 15 days of notification under section 72(2)(b)(ii) of the IRPA. An extension of time under section 72(2)(c) is available in appropriate circumstances, applying the four-factor test in Canada (Attorney General) v Hennelly, [1999] FCJ No 846 (FCA).
Can BridgePoint Law take on a counsel incompetence file?
Yes. BridgePoint Law advises clients on judicial review of immigration decisions, including matters involving former counsel incompetence under the G.D.B. / Galyas framework. For a consultation, contact us at natalie@bridgepointlaw.ca or (613) 417-1850.
Further reading on BridgePoint Law’s blog
- Federal Court Stay of Removal Motions in Canada: How Successful Stays Are Built
- CBSA Deferral of Removal: The Officer’s Discretion and How to Ask for It
- Returning to Canada After a Prior Removal: Authorization to Return and Study Permits
About BridgePoint Law
BridgePoint Law Professional Corporation advises clients on Federal Court judicial review of immigration decisions, including matters involving allegations of former counsel incompetence under the R v G.D.B. and Galyas v Canada framework. Principal counsel Ningjing (Natalie) Zhang, Ph.D., J.D., is a barrister and solicitor of the Law Society of Ontario. If a former licensee’s conduct has damaged your immigration file, contact us at natalie@bridgepointlaw.ca or (613) 417-1850. Time-sensitive matters are prioritised.
This article is general legal information about Canadian immigration litigation. It is not legal advice for any specific case and does not create a solicitor-client relationship.
