Arndorfer v. Canada (Minister of Citizenship and Immigration), 2002 FCT 2007

Date: 20021126

Docket: IMM-3861-00

Neutral citation: 2002 FCT 2007

Ottawa, Ontario, this 26^th day of November, 2002

Present:           THE HONOURABLE MR. JUSTICE BEAUDRY                                      

BETWEEN:

                              BELA ARNDORFER, NIKOLETTA KRISTINA HOLBIS,

BARBARA ZSANETT HOLBIS

                                                                                                                                                      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 Immigration and Refugee Board (IRB). The decision in question is in fact a notification issued by the Convention Refugee Determination Division (CRDD) to the Minister of Citizenship and Immigration (the "respondent"). The notification informs the Minister that Bela Arndorfer (the "male applicant"), Nikoletta Krisztina Holbis (the "female applicant") and Barbara Zsanett Holbis (the "minor applicant", five years of age) (together, the "applicants") withdrew their Convention refugee claims.

ISSUES

[2]                 The issues are as follows:

a)         Is the CRDD Rule 33(1) ultra vires the Immigration Act, R.S.C. 1985, c. I-2 (the "Act")? If Rule 33(1) is intra vires the Act, does it violate the rules of natural justice?

b)         Do the circumstances in which the Notice of Withdrawal was submitted by the applicants give rise to a finding that is non est factum?

c)         Was the refugee claim of the minor applicant withdrawn?

BACKGROUND

[3]                 The male applicant arrived in Canada on July 10, 1999. The female applicant and the minor applicant arrived on August 30, 1999. The applicants filed separate Personal Information Forms (PIF). The male applicant signed the minor applicant's form as a step-father. They submitted a combined written narrative outlining their circumstances in order to support the information on their PIFs.

[4]                 The applicants' hearing of their claim before the IRB was scheduled for June 27, 2000. The applicants had retained Peter Ivanyi ("Ivanyi") as counsel to assist them in preparing for the hearing. The applicants presented documents to Ivanyi, which they wished to have translated from Hungarian to English for the hearing. According to the male applicant, Ivanyi was to arrange for his PIF to be translated for him from English to Hungarian, but that was never done.

[5]                 The male applicant and the female applicant met with Ivanyi on June 26, 2000, to prepare for the hearing. Ivanyi asked these applicants to sign a form. The applicants, who have difficulty reading English, asked what they were being asked to sign. Ivanyi informed them that it was simply a formality. According to the applicants, the form which they were asked to sign, was titled "Notice of Withdrawal of a Convention Refugee Claim".

[6]                 On the afternoon of June 26, 2000, the male applicant received a call from Ivanyi informing him that the hearing had been adjourned and that Ivanyi would inform him of the new date of the hearing as soon as it was set.

[7]                 In his application for intervener status, Ivanyi deposed an affidavit stating the facts from his point of view.

[8]                 Ivanyi states that he met with the two adult applicants several times before and after they filed their PIFs. One of their meetings was to go over the Conditional Departure Orders issued by the respondent against each of the three applicants. That meeting took place on November 5, 1999. According to Ivanyi, there were at least four other meetings between November 1999 and July 2000, with either the male applicant alone or with both adult applicants.

[9]                 Ivanyi notes that the applicants wished to postpone the hearing which had been scheduled for June 27, 2000 because they were awaiting the translation of documents from Hungarian to English as well as the arrival of a witness from Hungary who would corroborate their claims. Ivanyi had the translations done in time for the scheduled hearing.

[10]            According to Ivanyi, it was the male applicant who announced at their June 26, 2000 meeting that he wished to withdraw his refugee claim because he planned to marry and apply for permanent residence. The female applicant also expressed a similar intention. The applicants then read and signed a Notification of Withdrawal form, assuring Ivanyi that they had read and understood the form, which was written in English. On cross-examination of his affidavit, Ivanyi says that he is fluent in Hungarian. Also, when the female applicant signed the withdrawal, she signed it on her behalf and on behalf of her minor child. It was abundantly clear from the discussions that the mother addressed herself to the issue of her child (see pages 4 and 15 of Ivanyi's affidavit).

[11]            Ivanyi denies misleading the applicants into believing that they should sign the form as a simple formality prior to the hearing, and that he called the male applicant on June 26, in the hours following the meeting.

DECISION AT ISSUE

[12]            The letter from the Registrar of the IRB to the Minister states the following:

In the Convention refugee claims of:

Bela ARNDORFER [DOB and I.D. number omitted]

Nikoletta Krisztina HOLBIS [DOB and I.D. number omitted]

Barbara Zsanett HOLBIS [DOB and I.D. number omitted]

I hereby notify the Minister that the above-named persons have WITHDRAWN their Convention refugee claims by notice in writing filed at the registry on 26 June, 2000. [emphasis in original.]

PROCEDURAL HISTORY

[13]            This case stands out for the number and variety of procedural steps that have taken place between the filing of the original application and the hearing of this claim on its merits. This section lays out the steps that the parties have taken.

[14]            On July 7, 2000, the respondent notified the male and female applicants in separate letters that the IRB informed them of the withdrawal of their application. In the letter to the male applicant (a similar statement was made to the female applicant), a representative of the respondent made the following reference to the Conditional Departure Orders:

A review of your file indicates that you were issued a Conditional Departure Order on November 4, 1999 pending the outcome of your refugee claim. The Departure Order became effective on June 27, 2000, the date of the letter sent to you by the Convention Refugee Determination Division. You are required to leave Canada and have your departure verified by Immigration officials by August 3, 2000.

[15]            The applicants believed that this amounted to a removal order and accordingly filed an application for a stay of removal with this Court. Their motion record for this application was filed on July 26, 2000. Gibson J. made an order on July 31, which begins as follows:

There being no "removal" scheduled for August 3, 2000 and the Court being satisfied that it may be in the interests of justice that the parties have the opportunity to consider alternative courses of action and the presentation of further materials, this application is adjourned sine die.

[16]            On August 2, 2000, the Federal Court instructed the IRB to provide reasons for its decision. In response, the IRB enclosed two copies of the Notice of Confirmation of Withdrawal and informed the Registry of this Court that the claim was withdrawn by the claimants on their own application; therefore, no reasons were required.

[17]            On February 2, 2001, Nadon J. (as he then was) granted leave to the applicants and deemed their application for judicial review to have commenced. The order was subject to the requirement that the applicants serve a copy of their record on Ivanyi and that they waive the solicitor-client privilege vis-à-vis Ivanyi, in order to allow him to file an affidavit in response upon request by the respondent.

[18]            The order by Nadon J. (as he then was) had set April 24, 2001 as the hearing date for the application for judicial review. On April 3, 2001, Ivanyi filed a motion for an Order, pursuant to Rule 109 of the Federal Court Rules, 1998 (the "Rules"), for leave to intervene in the proceeding. Lemieux J. issued an order on April 20, 2001 granting to Ivanyi leave to intervene.

[19]            The cross-examination of Ivanyi took place on May 15, 2001. After adjournments, and jurisdictional issues raised and decided by Layden-Stevenson, J., the judicial review was scheduled for October 1, 2002.

SUBMISSIONS

Applicants' Submissions

[20]            The applicants submit that CRDD Rule 33(1) is ultra vires the Act. The applicants refer to sections 32.1(6)(a) and 32.1(6)(b).

[21]            Rules 33 and 34 are ultra vires the Act if they are read the way the respondent argues they are to be read; that is, that the withdrawal of the claim can be done off the record, without an appearance before the CRDD. Section 69.1 provides that the Refugee Division may make the decision to declare the claim to have been abandoned, after giving the claimant a reasonable opportunity to be heard.

[22]            The applicants submit in the alternative that even if Rule 33(1) is intra vires the Act, it violates the rules of natural justice. They submit the following cases: Phillip v. Canada (Minister of Citizenship and Immigration) (1998), 159 F.T.R. 49 (F.C.T.D.); Sabet v. Canada (Minister of Citizenship and Immigration) (1998), 147 F.T.R. 291 (F.C.T.D.); Atwal v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 258 (F.C.T.D.) and Ou v. Canada (Minister of Citizenship and Immigration) (1999), 48 Imm. L.R. (2d) 131 (F.C.T.D.).

[23]            The applicant contends that Rule 33(1) was not properly executed. The Act and the rules of natural justice require that forms, including the Notice of Withdrawal of a Convention Refugee Claim, be translated to refugee claimants. The Tribunal also has an obligation to ensure that the form did in fact come from the claimant, that the claimant was properly informed about the content and the consequences of executing the form, and that the form was translated to the claimant. In this particular case, the Tribunal knew, or should have known, that the applicants required an interpreter/translator, as their PIFs indicated that they would require translation between Hungarian and English.

[24]            The applicants state that the claim of the minor applicant was never withdrawn, as a Notice of Withdrawal in her name was never signed. Only the male applicant and the female applicant signed Notice of Withdrawal forms, and neither of these forms contained the name of the minor applicant. In fact, the question regarding who has authority to make such representations on behalf of the minor was raised during the cross-examination of Ivanyi on his affidavit. The letter from the IRB informing the Minister of the withdrawal of the claims of the applicants included the name of the minor, notwithstanding the absence of a Notice of Withdrawal in her name. This constitutes an error.

[25]            At no time did the applicants intend to withdraw their claims for refugee status in Canada. In their initial set of submissions filed on July 26, 2000, the applicants rely on the affidavits of the male applicant and the female applicant to support their claims that the withdrawal of those claims is non est factum. In other words, it is not an act that they knowingly and willingly performed. They were misled by Ivanyi, and, if it were not for the misleading acts of Ivanyi, they would not have signed those forms. It is on this basis that they invoke the claim of non est factum, usually invoked in contractual disputes. The applicants submit that the Court of Appeal decision in Stumf v. Canada (Minister of Citizenship and Immigration), 2002 FCA 148, should apply in this case and subsection 69(4) of the Act has not been met.

Respondent Submissions

[26]            The Respondent argues that the CRDD is entitled to assume that counsel acts on behalf of the applicants and that the CRDD is entitled to rely upon the declaration of the male and female applicants on their Notifications of Withdrawal, that they fully understood its contents and that they can therefore read and understand English, even if they claim not to be confident in their ability to speak it. Ivanyi was fluent in Hungarian and translated the withdrawal document to the applicants.

[27]            In his cross-examination, Ivanyi confirms the fact that the mother explained to him that she represented her minor child and was therefore signing the withdrawal document on her behalf.

[28]            The file numbers for all three applicants are specified on the form. Therefore, the CRDD cannot be said to have erred in believing that the minor applicant was also withdrawing her claim.

[29]            With respect to the effects of the actions of counsel on the applicants, the respondent invokes the decision of Pelletier J. (as he then was) in Nunez et al v. Canada (Minister of Citizenship and Immigration) (2000), 189 F.T.R. 147 (F.C.T.D.). In that case, the Court rejected an allegation of serious professional misconduct advanced by the applicants who failed to commence judicial review proceedings.

[30]            With respect to the non est factum issue, the respondents refer to [1982] 2 S.C.R. 774">Marvco Color Research Limited v. Harris, [1982] 2 S.C.R. 774. In that case, the Supreme Court of Canada expressed concern over how this doctrine could hurt innocent persons, such as the respondent and the CRDD in the present case, and stated that carelessness may remove the right of a party to a document to disown the document they signed.

[31]            In the case at bar, even if the allegations by the applicants against Ivanyi are correct, which Ivanyi denies, the applicants were therefore careless in signing a withdrawal form in a situation where they were already unsatisfied with the conduct of their counsel.

[32]            The applicants have not shown that they have referred this matter to the Law Society of Upper Canada, the body which regulates the legal profession in Ontario.

Intervenor's Submissions

[33]            The version of the story presented by Ivanyi is effectively contained in his Motion Record, filed as Tab I in Annex B of this file. Ivanyi met with the male and female applicants several times before and after they filed their PIFs. The male applicant called his office in English on a number of occasions, including calls to notify the office of changes in address and telephone number, and to request that these changes be communicated to representatives of the respondent.

[34]            Ivanyi states that he prepared for the hearing in the days leading up to it, which was originally scheduled for June 27, 2000. He notes that contrary to the assertions of the applicants, the documents that had to be translated from Hungarian to English were in fact translated by

June 27. At the June 26, 2000 meeting, from which many of the complaints of the applicants stem, Ivanyi insists that the meeting began on time, and that at the meeting, Ivanyi informed the male applicant that credibility issues and an admitted lack of fear of persecution on Convention grounds constituted obstacles to a successful claim.

[35]            After being informed of the challenges facing him, the male applicant announced that he wished to withdraw his claim for refugee status as he was planning to marry and apply for permanent residence in Canada. The female applicant did not appear surprised by this announcement; in fact, she stated that she would do the same except that she did not "get out very much" (Ivanyi affidavit, paragraph 24) because caring for her child took up much of her time. The male applicant informed the female applicant that he would assist her in meeting a partner.

[36]            After a brief break, the male applicant returned to Ivanyi's office. At that time, Ivanyi finalized the Notification of Withdrawal, which the adult applicants read and signed. They assured him that they had understood the content of the Notification form, which was written in English and translated to them by Ivanyi, and that they understood the consequences of withdrawing their claims, including their eventual departure from Canada. Since translation was not needed, the part of the form which would be signed by the interpreter was left blank.

RELEVANT STATUTORY PROVISIONS

[37]            Section 32.1(6) of the Immigration Act reads as follows:

[38]            Section 69.1(6) of the Immigration Act reads as follows:

[39]            CRDD Rules 33 and 34 read as follows:

ANALYSIS

[40]            The issues argued in this case fall into three categories: the extent to which Rule 33(1) and its application in this case are consistent with the principles of natural justice, the non est factum arguments advanced by the applicants and the withdrawal of the minor applicant's claim. The non est factum argument will be dealt with first, as its determination to the extent to which the subsequent analysis of Rule 33(1) is necessary to dispose of this matter and then, I will deal with the minor applicant's withdrawal.

Non est factum - Effectiveness of the Notices of Withdrawal signed by the Applicants

[41]            The Supreme Court of Canada held in Marvco, supra, held that anyone who is careless in signing a document is precluded from invoking non est factum against those who rely on that document in good faith. The Court made reference to earlier jurisprudence describing non est factum as being a state in which the mind of a party did not follow his hand at the time of the execution of the document. Carelessness in a situation where reasonable care could have, and should have been taken, precludes a party from claiming that his or her mind did not follow the hand.

[42]            The Court raised the policy concern that allowing non est factum to be pleaded in a case where a party was careless would essentially have the effect of shifting to an innocent third party harm or loss which could have been prevented by greater care on the part of the parties. The Supreme Court allowed the appeal from the Ontario Court of Appeal and restored the decision of the trial court, which noted, among other things, that the defendants who pleaded non est factum were literate and spoke and understood English.

[43]            The policy considerations related to concerns for reliability and security are present to some extent in the case before this Court. Counsel, who act for refugee claimants, ought to be able to rely on the expressed wishes of their clients, subject to a duty to ensure that clients with a limited understanding of English or of the law, are aware of the consequences of acting on those wishes.

[44]            Similarly, the IRB and the respondent must be able to rely on what is communicated to them by claimants. If the IRB and the Minister had to impose on themselves a waiting period before acting on such notices as the Notice of Withdrawal, or impose extra steps on themselves simply to ensure that the statement of the claimant is indeed his or her final answer, the refugee claims process would be encumbered, which would in turn worsen an already critical backlog in the refugee claims system.

[45]            The affidavit evidence of Ivanyi indicates that the adult applicants were aware of the consequences of executing the Notification of Withdrawal forms at the time they signed them. The affidavit also provides reason to believe that Ivanyi would not have presented them with these forms had these applicants not expressed an intention to seek permanent residence, thereby discontinuing the process that they had started with respect to their refugee claims.

[46]            Ivanyi's statements, which have been tested by cross-examination, also indicate that notwithstanding imperfections in their command of English, the adult applicants sufficiently understood English to be able to make out what they were signing. Their representation to their counsel that they understood English and knew what they were signing is a representation on which Ivanyi was entitled to rely. The male applicant's phone calls to Ivanyi's office, which were made in English, add credence to Ivanyi's well-founded belief that they knew enough English to understand what they were signing.

[47]            Whether the adult applicants executed the Notification of Withdrawal forms through carelessness, or whether they intended to discontinue the refugee claims process at that time and then had second thoughts later, they have failed to establish their entitlement to plead non est factum. Ivanyi asked the applicants if they understood the withdrawal forms and they said "yes". When they executed the forms, they were acting on the intentions that they had just expressed to counsel. They had ample opportunity to read the forms and request assistance with words or terms that they did not understand, if any, prior to signing. If they had taken the requisite care, they would also have noticed that three I.D. numbers, one for each of the three claimants (including the minor), appeared on each form. It is not now open to them to state that their minds did not follow their hands.

[48]            In Nunez, supra, Pelletier J. (as he then was) stated that allegations of professional misconduct offered by a party in explanation of a failure to take a required step will not be considered without the benefit of the explanation of the member of the Bar against whom the allegations are being made. In this case, we have the benefit of the explanations of the subject of the complaints. His evidence indicates that he was acting on what he believed to be the intentions of his clients, judging by their statements, as well as by actions that they performed after Ivanyi took care to explain to them the consequences of those actions. His conduct certainly cannot be considered misconduct.

[49]            To the extent that the doctrine of non est factum, the respondent is entitled to rely on the Notification of Withdrawal. The CRDD has committed no factual error in notifying the respondent of the withdrawal. The policy considerations discussed above militate in favour of such a finding.

Rule 33(1) and Natural Justice

[50]            In Phillip, supra, Sabet, supra, Atwal, supra and Ou, supra, the applicants direct us to cases in which this Court has allowed judicial review applications of decisions of the CRDD in which claims had been ruled abandoned by the CRDD for various reasons, including the conduct of counsel. I have already concluded that the events which have brought me to this stage in the instant case cannot be attributed to improper conduct by counsel. This section of the discussion will focus instead on the extent to which the applicants in the instant case, were denied procedural fairness and, specifically, a fair hearing, on grounds similar to those in the precedents that they cited.

[51]            The precedents cited above can be distinguished from the case at bar by the manner in which the claims were discontinued. In the above cases, the panels of the CRDD which dealt with the cases declared the claims to be abandoned, as s. 69.1(6) of the Act provides that they may do so.

[52]            In this case, I am not faced with a determination by the CRDD, made pursuant to s. 69.1(6) of the Act, that the claims were abandoned. In fact, I am dealing with the reliance by the CRDD upon statements freely made to them by the applicants, indicating that they wished to withdraw their claims for refugee status.

[53]            Rule 33(1) permits a claimant to withdraw its claim either orally at the hearing or by notice in writing filed at the registry. When that right is exercised, subsection (2) of this Rule provides that the registrar of the CRDD must notify the Minister of the decision. The wording "shall notify" contained in Rule 33(2) indicates that the CRDD registrar is not making a discretionary decision when he or she notifies the Minister of the withdrawal of a claim; the registrar is bound to do so.

[54]            Furthermore, in exercising the duty imposed upon him or her in Rule 33(2), the registrar is acting as little more than a messenger to the Minister.

[55]            In the present case, the registrar was in possession of a Notification of Withdrawal form, which on its face appeared to be duly executed and contained no irregularities.

[56]            Rule 33 does not violate the rights of applicants to procedural fairness. Applicants choose to bring a premature end to proceedings when they exercise the right to withdraw their claims. They ought to reasonably understand that one of the consequences of this act is that a hearing to determine the merits of their claim is no longer necessary, since their claims are no longer pending. They made the conscious choice to take that route.

[57]            The applicants complained in their affidavits that they were not contacted in order to confirm that they were withdrawing their claims. Such a complaint is not justified. As discussed above, the CRDD is entitled to rely on documents which it receives, and is entitled to presume that they have been properly executed. In addition, the abandonment hearings to which applicants have a right under s. 69.1(6) of the Act are not necessary in the case of a withdrawal. The applicant who is found by the CRDD to have abandoned a claim requires, as a matter of procedural fairness, the right to be heard by the body that is making that decision with regard to his or her claim. In the case of a withdrawal, the applicant is the one who makes the decision and exercises his right to put an end to his claim.

Was the refugee claim of the minor applicant withdrawn?

[58]            I am satisfied that the intent in the case at bar was for the child's claim to be withdrawn. The step-father signed the child's claim. The mother signed the PIF. The narrative in all three claims is the same. The three claims were made jointly.

[59]            The applicants were the only ones who acted on behalf of the child and the female applicant was the natural mother of the minor applicant.

[60]            The cover letter and Notice of Withdrawal of the applicants' claim indicates the three claim numbers. I therefore conclude that the Board did not commit a reviewable error.

[61]            I also wish to distinguish the case at bar with Stumf, supra. In Stumf, the CRDD determined that the refugees had abandoned their claim: failure to file PIFs and failure to appear at their hearing. In the case at bar, we are faced with a withdrawal signed by the applicants on behalf of the minor applicant. In those circumstances, I am of the view that the CRDD did not have the obligation to designate a representative for the minor claimant.

[62]            For the above reasons, this judicial review is dismissed.

[63]            The applicant submits the following question for certification:

"Does the CRDD excede jurisdiction in declaring and notifying the Minister that a minor claimant has withdrawn his claim where no designated representative had been appointed by the Refugee Division?

[64]            The respondent argues that this question is not of general importance. Considering the case at bar, I am not persuaded that the question raised is serious and of general importance. No question will be certified.

                                                  ORDER

THIS COURT ORDERS that:

1.                    The application for judicial review of a decision of the Immigration and Refugee Board is dismissed.

2.                    No question will be certified.

_______________________

Judge

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   IMM-3861-00

STYLE OF CAUSE :                                        BELA ARNDORFER, NIKOLETTA KRISTINA

HOLBIS, BARBARA ZSANETT HOLBIS and

THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

PLACE OF HEARING :                                  Toronto, Ontario

DATE OF HEARING :                                    October 1, 2002

REASONS FOR ORDER :                           THE HONOURABLE MR. JUSTICE BEAUDRY

DATED :                     November 26, 2002

APPEARANCES :

Rocco Galati                                                         FOR THE APPLICANT

Catherine Vasilaros                                               FOR THE RESPONDENT

SOLICITORS OF RECORD :

Rocco Galati                                                         FOR THE APPLICANT

Toronto, Ontario

Morris Rosenberg                                                 FOR THE RESPONDENT

Deputy Attorney General of Canada                  

Toronto, Ontario