Date: 20040322
Docket: IMM-1077-03
Citation: 2004 FC 427
Ottawa, Ontario, March 22, 2004
Present: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
VIACHESLAV GAPCHENKO,
NATALIA HAPCHENKO
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated February 4, 2003, wherein the Board determined that the applicants had abandoned their refugee claim.
[2] The applicants are Israeli citizens of Russian origin, and claim to have an objective fear of being persecuted on account of their religion, race and ethnic origin.
[3] The applicants' hearing was scheduled for January 23, 2003. They were present at the hearing, but their counsel, Mr. Popov, was not.
[4] The Board gave the applicants one half hour to contact Mr. Popov's office in order to find out where he was. His secretary told the Board that he had left the office, but she did not know where he went.
[5] When the applicants returned to the hearing room, the Board explained that it was ready to proceed unless the applicants provided a satisfactory explanation as to why they changed counsels at the last minute, and why their new counsel was not present.
[6] The applicants stated that they had changed counsel a few days prior to the hearing because they were dissatisfied with the previous lawyer's services. A change of counsel notice had been duly received by the Board.
[7] The applicants requested a postponement, but were refused. The Board stated that it was the applicants' responsibility to ensure that Mr. Popov be present at the hearing. The applicants did not want to proceed without counsel. As a result, the Board declared the applicants' claim abandoned.
[8] The applicants submit that the Board's decision was manifestly unfair and abusive and was made contrary to the principles of natural justice because the Board insisted on proceeding without applicants' counsel even though they wanted to postpone the hearing and proceed only if he was there to represent them.
[9] The standard of review applicable to the judicial review of abandonment of claim decisions is that of reasonableness simpliciter (Ahamad v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 109).
[10] Section 168 of the Immigration and Refugee Protection Act (S.C. 2001, c. 27) ("the Act") and section 58 of the Refugee Protection Division Rules (SOR/2002-228) ("the Rules") set out the procedure for finding that a refugee claim has been abandoned. They read as follows:
| 168. (1) A Division may determine that a proceeding before it has been abandoned if the Division is of the opinion that the applicant is in default in the proceedings, including by failing to appear for a hearing, to provide information required by the Division or to communicate with the Division on being requested to do so.
(2) A Division may refuse to allow an applicant to withdraw from a proceeding if it is of the opinion that the withdrawal would be an abuse of process under its rules.
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168. (1) Chacune des sections peut prononcer le désistement dans l'affaire dont elle est saisie si elle estime que l'intéressé omet de poursuivre l'affaire, notamment par défaut de comparution, de fournir les renseignements qu'elle peut requérir ou de donner suite à ses demandes de communication.
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| 58. (1) A claim may be declared abandoned, without giving the claimant an opportunity to explain why the claim should not be declared abandoned, if
(a) the Division has not received the claimant's contact information and their Personal Information Form within 28 days after the claimant received the form; and
(b) the Minister and the claimant's counsel, if any, do not have the claimant's contact information.
58(2)
(2) In every other case, the Division must give the claimant an opportunity to explain why the claim should not be declared abandoned. The Division must give this opportunity
(a) immediately, if the claimant is present at the hearing and the Division considers that it is fair to do so; or
(b) in any other case, by way of a special hearing after notifying the claimant in writing.
58(3)
(3) The Division must consider, in deciding if the claim should be declared abandoned, the explanations given by the claimant at the hearing and any other relevant information, including the fact that the claimant is ready to start or continue the proceedings.
58(4)
(4) If the Division decides not to declare the claim abandoned, it must start or continue the proceedings without delay.
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58. (1) La Section peut prononcer le désistement d'une demande d'asile sans donner au demandeur d'asile la possibilité d'expliquer pourquoi le désistement ne devrait pas être prononcé si, à la fois :
a) elle n'a reçu ni les coordonnées, ni le formulaire sur les renseignements personnels du demandeur d'asile dans les vingt-huit jours suivant la date à laquelle ce dernier a reçu le formulaire;
b) ni le ministre, ni le conseil du demandeur d'asile, le cas échéant, ne connaissent ces coordonnées.
58(2)
(2) Dans tout autre cas, la Section donne au demandeur d'asile la possibilité d'expliquer pourquoi le désistement ne devrait pas être prononcé. Elle lui donne cette possibilité :
a) sur-le-champ, dans le cas où il est présent à l'audience et où la Section juge qu'il est équitable de le faire;
b) dans le cas contraire, au cours d'une audience spéciale dont la Section l'a avisé par écrit.
58(3)
(3) Pour décider si elle prononce le désistement, la Section prend en considération les explications données par le demandeur d'asile à l'audience et tout autre élément pertinent, notamment le fait que le demandeur d'asile est prêt à commencer ou à poursuivre l'affaire.
58(4)
(4) Si la Section décide de ne pas prononcer le désistement, elle commence ou poursuit l'affaire sans délai.
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[11] In order for the Board to find that a claim has been abandoned, the claimant must be in default either because he/she failed to appear for a hearing, he/she failed to provide information, or he/she failed to properly communicate with the Board. In addition, the Board must give a claimant an opportunity to be heard at a hearing, unless the circumstances provided for in subsection 58(1) of the Rules exist.
[12] In the case at bar, the Board has provided the applicants with every opportunity required by law. There was a formal hearing, at which the applicants were given an opportunity to explain their claim and show the Board that they did not abandon their refugee claim. The Board also warned them that if they did not provide an explanation, it would consider their claim abandoned. The applicants chose not to respond and simply stated they wanted to be represented by counsel. Additionally, the Board also gave the applicants time to call their lawyer's office to ask whether he would present himself. The applicants did not provide the Board with a reason why their lawyer did not appear.
[13] There is an onus on the applicant to act diligently in pursuing his/her refugee claim. In Ahamad, supra, Justice Lemieux wrote the following regarding the review of an abandonment of claim:
32 The decided cases of the Court on a review of abandonment claim decisions by the CRDD indicate the test or question to be asked is whether the refugee claimant's conduct amounts to an expression of intention by that person, he or she did not wish or had shown no interest to pursue the refugee claim with diligence; his assessment is to be made in the context of the obligation of a claimant who breaches one of the elements of subsection 69.1(6) to provide a reasonable excuse.
[14] A claimant has the right to be represented by the lawyer of his/her choice, but in the case at bar, the applicants chose to change counsel three days before the hearing. The applicants, who had retained experienced counsel in April or May of 2002, decided to dismiss her immediately before the hearing because they were not satisfied with her work. However, the Board stated that it was familiar with Me Langelier, and knew her to be a competent lawyer.
[15] It was the duty of the applicants, before changing counsel at the last minute, to verify if the new one was available (Natchev v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1601 (Q.L.)). The applicants could not request a postponement because the counsel of their choice was not available at the date of the hearing (Pierre v. Minister of Manpower and Immigration, [1978] 2 F.C. 849 (C.A.)).
[16] This situation differs greatly from the one in Mathon v. Canada (Ministre de l'emploi et de l'immigration) (1988), 28 F.T.R. 217. In that case, the lawyer failed to file an application for redetermination within the appropriate deadline, even though the applicant had signed it in due time. This error caused the applicant to lose her right to a redetermination hearing altogether. Justice Pinard made it clear that his comments applied to a litigant who has acted with care. He writes at paragraph 23:
[...] Accordingly, as the exclusion was solely the result of a lawyer's error and/or negligence, a litigant who has acted with care should not be required to bear the consequences of such an error or negligence. (My emphasis).
[17] In the case at bar, the applicants cannot be said to have acted with care. In fact, it is arguable that changing representatives a few days before a hearing was careless, especially considering the fact that Me Langelier had been handling their refugee claim since the spring of 2002.
[18] Although the new counsel did not show up at the hearing, the Board offered the applicants the opportunity to proceed alone which they refused. According to subsection 168(1), it was therefore open to the Board to decide then and there that there had been abandonment of the claim.
[19] In Linartez v. Canada ( Minister of Citizenship and immigration) (1995), 109 F.T.R. 300, this Court was faced with similar circumstances. In that case, the applicant changed lawyers, and the second lawyer presented herself at the hearing, but then asked for a postponement in order to prepare and because she had to be present at another hearing. When the Board refused, she left. Nadon J. quoted with agreement the following excerpt from Eberle J. in R. v. Taylor (1980) W.C.B. 244 (Ont. H.C.J.), regarding an applicant's right to counsel:
53 In Re R. and Chimenti (1980), 17 C.R. (3d) 306, Holland J. of the Supreme Court of Ontario stated, with respect to the right to be represented by counsel (at pages 310 et seq.):
[...]
It appears to me that the applicant's position is this: As she has chosen a certain lawyer as her counsel, and her counsel is available for trial only on a particular date, the court accordingly has no jurisdiction to set any other date for trial than that date. That is a proposition which, in my view, is entirely insupportable. It is argued that, since the accused has a right to counsel of her choice, and since it was made clear to the court on the 19th December that the counsel of her choice was not available on 18th January [the date to which the court had adjourned the trial], it was contrary to the principles of natural justice, and an excess of jurisdiction, to set the date that was set by the Provincial Judge. In my view, the right to counsel of the accused's choice does not carry with it the right to dictate the date for trial. The right to counsel of the accused's choice, in my opinion, means counsel of the accused's choice who is able to appear on the date which has been set for trial. I do not see anything in R. v. Butler (1973), 11 C.C.C. (2d) 381 (Ont. C.A.) or in [1977] 2 S.C.R. 121">Barrette v. R., [1977] 2 S.C.R. 121, 33 C.R.N.S. 377, 29 C.C.C. (2d) 189, 68 D.L.R. (3d) 260, 10 N.R. 321, to the contrary. Nor in my view, can the language of s. 737 of the Criminal Code, R.S.C. 1970, c. C-34, be interpreted to give this effect.
[20] I find these comments particularly applicable to the case at hand.
[21] Under the circumstances, I am satisfied that the Board did not fail to follow the principles of natural justice. Their decision was not unreasonable, arbitrary or capricious.
[22] For these reasons, the application for judicial review is dismissed.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed.
"Danièle Tremblay-Lamer"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1077-03
STYLE OF CAUSE: VIACHESLAV GAPCHENKO, NATALIA HAPCHENKO v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: March 18, 2004
REASONS FOR ORDER
AND ORDER OF THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
DATED: March 22, 2004
APPEARANCES:
Mr. Alain Joffe FOR APPLICANTS
Ms. Michèle Joubert FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Alain Joffe
3333, chemin Queen Mary
Suite 442
Montreal, Québec
H3V 1A2 FOR APPLICANTS
M. Morris Rosenberg
Deputy Attorney General
Montreal, Quebec FOR RESPONDENT
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