Date: 20041028
Docket: IMM-10095-03
Citation: 2004 FC 1527
Toronto, Ontario, October 28th, 2004
Present: The Honourable Mr. Justice Campbell
BETWEEN:
KATIKA CLEOPARTIER (AKA KATIKA CLEOPART BROWNE)
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Immigration Refugee Board's ("IRB") decision in the present application for judicial review denies the Applicant's claim for refugee status. The substance of the decision is not the issue of contention in the present application; the issue of contention is the failure of the IRB to grant the Applicant an adjournment of the hearing date.
[2] It is agreed that the Applicant received barely three weeks notice of the date of hearing of her application for refugee status. It is also agreed that the very next day after receiving notice, the Applicant retained counsel who supplied dates of availability some four months after the hearing date set by the IRB. These dates were rejected by the IRB as being too far in the future. Nevertheless, the Applicant appeared on the date of hearing and requested an adjournment to the same time frame which had already been stated by the IRB to be unacceptable.
[3] On the scheduled date for hearing, in rejecting the Applicant's request for an adjournment to another date, the IRB gave the Applicant a choice: either abandon the claim, or proceed unrepresented. Given the options available to her, the Applicant proceeded unrepresented. The Applicant's Refugee Claim was denied and oral rejection reasons were delivered from the bench.
[4] The Applicant argues that the denial of the adjournment request was unfair. It is agreed that the standard of review of the IRB's decision not to grant the adjournment is reasonableness.
[5] By Rule 48 of the Refugee Protection Rules (SOR-2002-228), the IRB has the power to exercise discretion in granting adjournments of hearing dates fixed. It is agreed that, by the IRB's practice, an adjourned hearing date should be within three months. However, it is also agreed that the IRB retains a discretion to grant a longer period.
[6] Under Rule 48(4), eleven factors are to be considered when making a decision on an application for adjournment. The Rule reads as follows:
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CHANGING THE DATE OR TIME OF A PROCEEDING
Application to change the date or time of a proceeding
....
Factors
48.(4) In deciding the application, the Division must consider any relevant factors, including
(a) in the case of a date and time that was fixed after the Division consulted or tried to consult the party, any exceptional circumstances for allowing the application;
(b) when the party made the application;
(c) the time the party has had to prepare for the proceeding;
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CHANGEMENT DE LA DATE OU DE L'HEURE D'UNE PROCÉDURE
Demande de changement de la date ou de l'heure d'une procédure
.....
Éléments à considérer
48.(4) Pour statuer sur la demande, la Section prend en considération tout élément pertinent. Elle examine notamment :
a) dans le cas où elle a fixé la date et l'heure de la procédure après avoir consulté ou tenté de consulter la partie, toute circonstance exceptionnelle qui justifie le changement;
b) le moment auquel la demande a été faite;
c) le temps dont la partie a disposé pour se préparer;
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(d) the efforts made by the party to be ready to start or continue the proceeding;
(e) in the case of a party who wants more time to obtain information in support of the party's arguments, the ability of the Division to proceed in the absence of that information without causing an injustice;
(f) whether the party has counsel;
(g) the knowledge and experience of any counsel who represents the party;
(h) any previous delays and the reasons for them;
(i) whether the date and time fixed were peremptory;
(j) whether allowing the application would unreasonably delay the proceedings or likely cause an injustice; and
(k) the nature and complexity of the matter to be heard.
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d) les efforts qu'elle a faits pour être prête à commencer ou à poursuivre la procédure;
e) dans le cas où la partie a besoin d'un délai supplémentaire pour obtenir des renseignements appuyant ses arguments, la possibilité d'aller de l'avant en l'absence de ces renseignements sans causer une injustice;
f) si la partie est représentée;
g) dans le cas où la partie est représentée, les connaissances et l'expérience de son conseil;
h) tout report antérieur et sa justification;
i) si la date et l'heure qui avaient été fixées étaient péremptoires;
j) si le fait d'accueillir la demande ralentirait l'affaire de manière déraisonnable ou causerait vraisemblablement une injustice;
k) la nature et la complexité de l'affaire.
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[7] It is agreed that a relevant factor in the mind of the IRB in refusing the adjournment was the fact that the Applicant had only retained counsel the day after notice of the hearing date was received. This is apparent from the following quotation of the transcript:
PRESIDING MEMBER: - asking for a postponement of our hearing. This of course was sent into our office on the 30th of October by fax by your counsel and the coordinating member has denied the postponement request. Our policy in the rules state that you should be - you should not exceed 16 weeks and this is going way into next year, okay? So the postponement request has been denied. You have a right to counsel, but it's not an absolute right and I want to explain that to you.
You've been in this country since 1999 and in the very last minute you've decided to go in search of a counsel. On that very basis you do not come under the rule of exceptional circumstances. I'm going to deny your request for postponement. Are you willing to proceed without your counsel today?
CLAIMANT: No.
(Tribunal Record, p. 214)
[8] Other factors considered by the IRB in denying the adjournment request appear in the following passage:
PRESIDING MEMBER: You see, when you - - one of the conditions of getting a counsel is you should get a counsel who's willing to accept the date you've been given for a hearing.
CLAIMANT: Okay.
PRESIDING MEMBER: We cannot accommodate his holiday schedule and everything else because one of the mandates of this Board is to do this hearing quickly, simply and expeditiously - - -
CLAIMANT: Okay.
PRESIDING MEMBER: - - - because you're not the only one who's coming before the Board. There's a lot of other people.
CLAIMANT: Okay.
PRESIDING MEMBER: In addition to that, if I postpone it we are responsible and accountable to the government. Their time has been wasted, so has mine, okay? And this room has been booked for the morning to accommodate your claim. So there's a whole lot of factors involved in this thing. Based on that, I'm going to deny your request for postponement.
You have an option, to go ahead today or I can abandon your claim. Do you want ten minutes to think about it?
(Tribunal Record, pp. 215-216)
[9] It is agreed that, with respect to the factors to be taken into consideration in deciding the adjournment request, there were no previous delays on the Applicant's part and no peremptory date had ever been fixed.
[10] Counsel for the Respondent argues that the weight placed by the IRB on the fact that the Applicant did not retain counsel until the day after she received notice is important, and should be accepted as resulting in a reasonable conclusion not to adjourn. During the course of the oral hearing of the present application I expressed that, in my opinion, the fact that counsel was not retained before notice was given is irrelevant. It is obvious that it would not have mattered whether counsel was retained months in advance of the date of notice being given; the facts remain that only three weeks notice was given of the date of the hearing and, at the time of notice, counsel was unavailable.
[11] Regardless of the unsuitability of the dates twice advanced by Counsel for the Applicant, it is important to note that no attempt was made by the IRB to place the Applicant with the burden of meeting a new peremptory hearing date. It is very important to note that, with regard to Rule 48(4)(j), absolutely no consideration was given to any possible injustice caused by granting or not granting the adjournment. Indeed, there was no consideration of the injustice caused to the Applicant in forcing her to make the choice between abandoning her claim or proceeding unrepresented.
[12] In my opinion, the IRB member's decision so manifestly fails to properly consider the factors in Rule 48(4), that it is unreasonable.
ORDER
Accordingly, I set aside the adjournment decision under review and refer the matter back to a differently constituted panel for redetermination on the merits of the Applicant's Refugee Claim.
"Douglas R. Campbell"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-10095-03
STYLE OF CAUSE: KATIKA CLEOPARTIER (AKA KATIKA CLEOPART
BROWNE)
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 26, 2004
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: OCTOBER 28, 2004
APPEARANCES BY:
Ronald Shacter FOR THE APPLICANT
Alison Engel FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ronald Shacter
Barrister & Solicitor
Toronto, Ontario FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT
FEDERAL COURT
Date: 20041028
Docket: IMM-10095-03
BETWEEN:
KATIKA CLEOPARTIER (AKA KATIKA CLEOPART BROWNE)
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR REASONS FOR ORDER
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