Date:
20120829
Docket:
IMM-8948-11
Citation:
2012 FC 1025
Ottawa, Ontario,
August 29, 2012
PRESENT: The
Honourable Mr. Justice Russell
BETWEEN:
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JOZSEF PUSUMA, AGNES TIMEA
DAROCZI, VIKTORIA LAURA PUSUMA DAROCZI
(by her litigation guardians)
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee Protection
Act, SC 2001, c 27 (Act) for judicial review of the decision of the
Refugee Protection Division (RPD) of the Immigration and Refugee Board, dated 5
December 2011 (Decision) which refused the Applicants’ request to have their claims
for protection under sections 96 and 97 of the Act reopened.
BACKGROUND
[2]
The
Applicants are Roma and citizens of Hungary. They came to Canada to seek protection from persecution based on their ethnicity and their political beliefs.
They are currently subject to enforceable removal orders. After Justice Roger
Hughes refused to stay their deportation on 8 December 2011, the
Applicants took sanctuary at an unnamed Anglican church in Toronto where they
remain.
[3]
The
Applicants claimed refugee protection in Canada on 17 September 2009. They said
they faced persecution because of the Male Applicant’s work with Viktoria
Mohacsi (Mohacsi), a member of the European Parliament who advocated for Roma
rights and because they are Roma. After they claimed protection, they retained
counsel to represent them: Mr. Hohots, a lawyer, and Mr. Sarkozi, an
immigration consultant. After retaining counsel, the Applicants say they
provided Mr. Sarkozi with a letter from Mohacsi confirming the Male Applicant’s
employment (Mohacsi Letter). They also say they gave him a DVD containing a
documentary on persecution of Roma people in Hungary.
Procedural History
[4]
The
RPD heard the Applicants’ claims over two sittings. Mr. Hohots’s articling
student represented them at the first sitting, where they asked for and
received a postponement because the Female Applicant was ill. Mr. Sarkozi
represented the Applicants at the second sitting.
[5]
At
the second sitting, the Applicants attempted to introduce the Mohacsi Letter
and DVD to show country conditions in Hungary. The RPD refused to admit this
evidence because the Applicants had not submitted it more then twenty days
before the hearing according to paragraph 29(4)(a) of the Refugee
Protection Division Rules SOR/2002-228 (Rules). They had also not provided
an English translation of the Mohacsi Letter. The RPD viewed the DVD as part of
the Applicants’ final submissions.
[6]
The
RPD considered the Applicants’ claims and rejected them on 25 February 2011
(Refugee Decision). The determinative issue was state protection. The RPD found
the Male Applicant had not reported incidents of persecution to the police and
had not reasonably explained his failure to do so. The Male Applicant’s failure
to do everything reasonably expected of him to seek protection could not rebut
the presumption that state protection is available in Hungary. The RPD mentioned the DVD in its reasons, finding that it showed Hungary faced problems with discrimination in the past. However, other evidence showed Hungary had taken steps to address this issue. The RPD found state protection was available
to the Applicants in Hungary.
[7]
Crucial
aspects of the Male Applicant’s story were not credible. Although he alleged he
had worked for Mohacsi, the Male Applicant had not provided documentary
evidence to corroborate this allegation. The RPD rejected the Applicants’
explanation for not providing a translated copy of the Mohacsi Letter. The 1½
years between their claims for protection and the hearing was enough time to
have had the letter translated. The Applicants could have provided information
about Mohacsi from the internet, but they did not. The Male Applicant had not
mentioned an attack he suffered in 2009 in an interview with Citizenship and
Immigration Canada (CIC) which he testified about at the hearing.
[8]
After
the RPD rejected their claims, the Applicants applied to the Court for leave
and judicial review of the Refugee Decision (IMM-1993-11). They say they asked
Mr. Hohots to represent them on that application, but the Court’s file
indicates they were self-represented. Justice Michael Kelen dismissed the
application with respect to the Refugee Decision on 3 June 2011 because no application
record was filed.
[9]
The
Applicants applied for a Pre-Removal Risk Assessment, which was denied. They
also asked for a deferral of their removal, which was also denied. Justice
Robert Barnes denied their application for leave and judicial review of the
deferral decision on 7 March 2012 (IMM-8947-11).
[10]
Following
the dismissal of their first application to the Court, the Applicants retained
their current counsel. They filed complaints against their previous
representatives with the Law Society of Upper Canada (LSUC) on Friday, 25
November 2011 and the Canadian Society of Immigration Consultants (CSIC) on Monday,
28 November 2011. They then asked the RPD to re-open their claims under section
55 of the Rules on Tuesday, 29 November 2011. The core of their submissions was
an allegation that the conduct of their previous representatives had breached
their right to procedural fairness. They said that previous counsel failed to
submit a translation of the Mohacsi Letter before the deadline passed under
paragraph 29(4)(a) of the Rules and that counsel’s incompetence
prevented them from presenting critical evidence. El Kaissi v Canada (Minister of Citizenship and Immigration) 2011 FC 1234 holds that this was a
breach of procedural fairness which required the RPD to re-open their claims.
[11]
The
Respondent made submissions opposing the request to reopen. He said there was
no evidence the previous representatives were aware of the allegations against
them. The Respondent also pointed out the Refugee Decision was based on
credibility and the availability of state protection.
[12]
The
RPD considered the Applicants’ request to re-open their claims and rejected it
on 5 December 2011. The RPD notified the applicants of the Decision on 7
December 2011.
DECISION
UNDER REVIEW
[13]
The
RPD rejected the Applicants’ request to reopen their claims because their
counsel’s incompetence had not breached their right to procedural fairness. The
RPD also found there was no breach of procedural fairness from the original panel’s
refusal to admit the Mohacsi Letter or the DVD into evidence.
[14]
The
RPD briefly reviewed the Refugee Decision, finding that the major credibility
concern was the Male Applicant’s failure to disclose the 2009 attack in his
interview with CIC. The Applicants’ refugee claims were refused because state
protection was available to them in Hungary. The RPD found the original panel
was entitled to reject the Mohacsi Letter under subsection 29(4) of the Rules.
There was no breach of procedural fairness in this regard.
[15]
The
Applicants also could not establish a breach of procedural fairness from the
conduct of their previous representatives because they had not given them an
opportunity to respond to the allegations against them. The Applicants had
filed complaints about their previous representatives with the LSUC and the
CSIC, but this was not enough. The RPD relied on Ghahremani v Canada (Minister of Citizenship and Immigration) 2006 FC 1494; and Gonzalez v Canada (Minister of Citizenship and Immigration) 2006 FC 1274. The RPD also pointed out
that Betesh v Canada (Minister of Citizenship and Immigration) 2008 FC
173 establishes that a new hearing because of counsel incompetence should only
be granted in exceptional cases and where there is a reasonable chance the
result would have been different had counsel not been incompetent.
ISSUES
[16]
The
Applicants raise the following issues in this application:
a.
Whether
the RPD erred by requiring them to file complaints about previous counsel and
give previous counsel notice of their allegations;
b.
Whether
the RPD breached their right to procedural fairness by not putting any notice
requirement to them for them to address;
c.
Whether
the RPD’s finding that previous counsel’s incompetence did not affect the
original panel’s conclusion state protection was available was reasonable.
STANDARD
OF REVIEW
[17]
The
Supreme Court of Canada in Dunsmuir v New Brunswick 2008 SCC 9, held
that a standard of review analysis need not be conducted in every instance.
Instead, where the standard of review applicable to a particular question
before the court is well-settled by past jurisprudence, the reviewing court may
adopt that standard of review. Only where this search proves fruitless must the
reviewing court undertake a consideration of the four factors comprising the
standard of review analysis.
[18]
The
first issue is a question of law. Dunsmuir, above, at paragraph 54
establishes that questions of law in which a decision-maker has a particular
expertise are to be evaluated on the reasonableness standard. Recently, in Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association 2011
SCC 61, the Supreme Court of Canada held at paragraph 30 that correctness
applies only in certain enumerated categories: constitutional questions,
questions of central importance to the legal system as a whole, questions on
the jurisdictional lines between specialized tribunals, and true questions of
vires. This is not such a question, so the standard of review on the first
issue is reasonableness.
[19]
The
third issue relates to the RPD’s finding of fact. Dunsmuir, above, at
paragraph 53 establishes that findings of fact are to be evaluated on the
reasonableness standard.
[20]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at
paragraph 47, and Canada (Minister of Citizenship and Immigration)
v Khosa, 2009 SCC 12 at paragraph 59. Put another way, the Court
should intervene only if the Decision was unreasonable in the sense that it
falls outside the “range of possible, acceptable outcomes which are defensible
in respect of the facts and law.”
[21]
The
second issue in this case implicates the Applicant’s opportunity to respond,
which is an aspect of the duty of fairness. It is well established that such
questions are subject to the correctness standard. In Canadian Union of
Public Employees (C.U.P.E.) v Ontario (Minister of Labour) 2003 SCC 29, the
Supreme Court of Canada held at paragraph 100 that “It is for the courts, not
the Minister, to provide the legal answer to procedural fairness questions.”
Further, the Federal Court of Appeal in Sketchley v Canada (Attorney General) 2005 FCA 404 at paragraph 53 held that the “procedural fairness
element is reviewed as a question of law. No deference is due. The
decision-maker has either complied with the content of the duty of fairness
appropriate for the particular circumstances, or has breached this duty.” The
standard of review on the second issue is correctness.
STATUTORY
PROVISIONS
[22]
The
following provisions of the Rules are applicable in this proceeding:
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55. (1) A claimant or
the Minister may make an application to the Division to re open
a claim for refugee protection that has been decided or abandoned.
[…]
(4)
The Division must allow the application if it is established that there was a
failure to observe a principle of natural justice.
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55. (1) Le demandeur
d’asile ou le ministre peut demander à la Section de rouvrir toute demande
d’asile qui a fait l’objet d’une décision ou d’un désistement.
[…]
(4)
La Section accueille la demande sur preuve du manquement à un principe de
justice naturelle.
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ARGUMENTS
The
Applicants
[23]
Under
section 55 of the Regulations, a breach of procedural fairness requires the RPD
to reopen a claim. In Matondo v Canada (Minister of Citizenship and
Immigration) 2005 FC 416, Justice Sean Harrington said at paragraph 14 that
“Section 55(4) of the Regulations is clear. If there was a breach of natural justice,
the claim has to be reopened. There is no discretion vested with the Board.” Memari
v Canada (Minister of Citizenship and Immigration) 2010 FC 1196 establishes
that counsel’s incompetence can result in a breach of procedural fairness if
that incompetence results in a miscarriage of justice. See paragraphs 33 to 36
and El Kaissi, above, at paragraph 18.
[24]
There
was no legal basis for the RPD to require the Applicants to show they had made
a complaint to the governing bodies for their previous representatives and to notify
those representatives of the allegations against them. In Shirvan v Canada (Minister of Citizenship and Immigration) 2005 FC 1509, Justice Max Teitelbaum
held at paragraphs 31 and 32 that
Before examining allegations of incompetence, the
Court must first determine whether the Applicants have met their preliminary
burden of giving notice to Mr. Hadad of the allegations. Counsel for the
Applicants wrote to the Canadian Society of Immigration Consultants in a letter
dated August 15, 2005, in which counsel complained of Mr. Hadad's treatment of
the Applicants and others, and requested that the CSIC immediately prohibit Mr.
Hadad from practicing as an immigration consultant.
The letter was dated August 15, 2005, but the
Applicants commenced this action in March. This does not pose a problem for the
Applicants. The Courts have required a letter to a governing body as a form of
corroborating evidence of allegations of incompetence. Courts do not wish to
entertain assertions of incompetence without some supporting evidence (Nunez
v. Canada (MCI), [2000] F.C.J. No. 555 (T.D.) at para. 19; Bader v.
Canada (MCI), [2002] F.C.J. No. 408, 2002 FCT 304 at para. 8). The letter
provides sufficient corroborating evidence, and provided sufficient notice of the
allegation to the Applicants' former counsel. In addition, the Respondent wrote
directly to Mr. Hadad in a letter dated October 12, 2005. This letter would
have provided Mr. Hadad with sufficient time to consider responding to the
allegations made by the plaintiffs in this matter.
[25]
A
formal complaint is an acceptable and sufficient means of giving notice to an
allegedly incompetent representative, but it is not the only means of doing so.
See M.A.C. v Canada (Minister of Citizenship and Immigration) 2009 FC 1174
at paragraph 31. Further, Betesh, above, at paragraph 32 specifically
says that either notice to a governing body or informing previous counsel
personally will meet the threshold requirement of establishing this kind of
procedural violation. See also Ghahremeni, above.
[26]
The
RPD unreasonably held that the Applicants had to inform their previous representatives
of the allegations against them and complain to the applicable governing
bodies. This is an error of law which requires the Decision to be returned for
reconsideration.
[27]
In
this case, counsel’s incompetence meant the Applicants were precluded from
admitting the Mohacsi Letter into evidence before the RPD panel which heard
their claims. This omission affected the RPD’s finding on state protection and
credibility. Flores v Canada (Minister of Citizenship and Immigration) 2010
FC 503 at paragraphs 30 and 31 shows that, in order to properly assess state
protection, the RPD must first assess the risk a refugee claimant faces. The
Mohacsi Letter showed the Male Applicant was involved with a high profile
member of the European Parliament. His risk profile was different from that of
ordinary Hungarian, so the exclusion of the Mohacsi Letter impacted the RPD’s
state protection analysis. Previous counsel’s incompetence prevented the
Applicants from adducing evidence which was critical to their case, so the
RPD’s finding that the original panel’s state protection analysis was
unaffected by counsel’s incompetence was unreasonable. Had counsel’s
incompetence not prevented the Applicants from adducing the Mohacsi Letter as
evidence, the result may have been different.
Procedural Fairness
[28]
In
the event the RPD reasonably found the Applicants were required to give notice
to previous counsel and complain to their governing bodies, the Applicants
argue that the RPD breached their right to procedural fairness by not informing
them of the dual requirement. The Applicants could not reasonably have known of
this requirement, so the RPD was obligated to inform them of it. The RPD did
not, but decided their application on this basis anyway.
The
Respondent
[29]
In
order to successfully claim counsel’s incompetence amounted to a breach of
procedural fairness, claimants must first give their previous counsel notice of
their allegations. See Shirvan, above, at paragraphs 31 and 32, and Betesh,
above. The RPD reasonably found that, even though the Applicants had complained
to the LSUC and the CSIC, they had not given their previous representatives
notice or an opportunity to respond to the allegations against them. The
Applicants also have an alternative remedy available to them, in that they can
apply for another PRRA.
The Applicants’
Reply
[30]
Although
the Respondent has relied on Betesh, above, for the proposition that
both notice and a complaint are required, Betesh does not support this
position. In Betesh, above, Justice James O’Reilly denied the application
for judicial review because the applicants in that case had “not provided
evidence that their consultant was informed of their allegations or that any
complaint was made to the Canadian Society of Immigration Consultants.” Paragraph
17 of M.A.C., above, establishes that a formal complaint is an
acceptable way to give counsel notice. The Applicants did this, so it was an
error for the RPD to deny their request on this basis.
The
Respondent’s Further Memorandum
[31]
The
RPD’s Decision not to reopen the Applicants’ claims was based on a reasonable
conclusion their previous representatives did not know the Applicants had
alleged they were incompetent. In their request to reopen their claims, the
Applicants said they would provide documents from Mohacsi to show the situation
people face in Hungary, but they did not submit these documents.
Failure to Notify Previous
Representatives
[32]
The
RPD reasonably concluded the Applicants had not given their previous representatives
sufficient notice of the allegations against them. The Applicants’ complaints
were filed only ten days before the RPD made the Decision. Shirvan and M.A.C.,
above, establish that incompetence can only establish a breach of procedural
fairness where previous counsel has had adequate notice of the allegation of
incompetance. Nothing on the record before the Court shows the LSUC or the CSIC
had contacted Mr. Hohots or Mr. Sarkozi in the ten days between the filing of
the complaints and the Decision. The previous representatives could only have known
about the allegations if the Applicants had contacted them.
[33]
In
Arndorfer v Canada (Minister of Citizenship and Immigration) 2001 FCT
20, the Court directed applicants alleging incompetence to serve their
application record on previous counsel. The Court also directed the applicants
in that case to waive privilege so that previous counsel could respond to the
allegations of incompetence. This shows the importance of allowing previous
representatives an opportunity to respond to allegations against them.
[34]
The
Respondent admits counsel incompetence may breach procedural fairness. However,
there must be clear and convincing evidence of incompetence. Prejudice arising
from the incompetence must also be shown. See Ghahremani, above, at
paragraph 6. Further, it must be “reasonably probable that, but for the
professional error or errors in question, the result of the proceeding would
have been different.” See Gonzalez, above, at paragraph 27.
[35]
The
RPD reasonably concluded the Applicants had not shown that previous counsels’
incompetence had affected the result of their refugee claims. The absence of
the Mohacsi letter only went to the RPD’s conclusion the Male Applicant had not
worked for Mohacsi. His failure to mention the 2009 attack in his PIF was a
greater concern in the Refugee Decision and was not connected to any
incompetence.
[36]
The
Applicants have also said their previous counsel failed to file country
condition evidence to establish the risk they face. They have not said what
evidence he failed to file or how this would have changed the Refugee Decision.
[37]
The
Applicants’ claims were denied because state protection was available to them
in Hungary. When they asked the RPD to reopen their claims, the Applicants did
not submit any evidence to show Hungarian authorities do not provide adequate
protection for Roma rights activists like the Male Applicant.
ANALYSIS
[38]
Applicants’
counsel has given me the procedural history of this matter and the difficulties
encountered by the Applicants along the way. However, for purposes of this
review, I am confined to the Decision and the record before me as it relates to
the issues raised.
[39]
First
of all, I accept the proposition that the excluded Mohacsi Letter, dealing as
it does with the Applicants’ activities and profile in Hungary, is material to
a state protection analysis, so that if the letter was improperly excluded the
state protection findings cannot stand.
[40]
I
also accept that the RPD’s interpretation of the notice requirement where
former counsel are accused of incompetence was a major part of its Decision. As
the Decision says:
The [Applicants] did file complaints with the Law
Society of Upper Canada and the regulatory body for immigration consultants.
However, there is nothing in the application to indicate that the [Applicants]
gave former counsel an opportunity to provide their explanation as required in Gharameni,
Irav v M.C.I. (F.C. no IMM-1740-06) […] whereby the Court stated: This
court is reluctant to entertain assertions of incompetence without proper
notice being given to former counsel and the appropriate Law Society or CSIC.
Moreover, the same conclusion was reached in Ramiro Gonzales, Norvin v M.C.I.
(F.C. no. IMM-1158-06) […] whereby the Court also stated that: An applicant
cannot validly cite a professional error of his former counsel without supply
[sic] the latter’s explanation regarding the error complained of.
[41]
I
do not read this passage as showing that the RPD imposed on the Applicants some
kind of inappropriate dual notice requirement. Rather, the RPD’s finding was
that, on the facts of this case, the Applicants’ complaints to the LSUC and the
CSIC were not sufficient notice to allow them to establish a breach of
procedural fairness from the conduct of their previous representatives. This, I
think, was a reasonable conclusion.
[42]
As
Shirvan, above, makes clear, the “Courts have required a letter to a
governing body as a form of corroborating evidence of allegations of
incompetence.” [Emphasis added]. But this does not automatically fulfil the
notice requirement. As it happens, on the facts of Shirvan, the letter
to the governing body was also “sufficient notice of the allegation to the
Applicant’s former counsel,” but there is nothing in Shirvan which says
this will always be the case. Even in Shirvan, Justice Teitelbaum
pointed out that
In addition, the Respondent wrote directly to Ms.
Hadad in a letter dated October 12, 2005. This letter would have provided Ms.
Hadad with sufficient time to consider responding to the allegations made by
the Plaintiffs in this matter.
In other words, Justice Teitelbaum
satisfied himself that, on the facts before him, adequate notice had been
given. He did not say that a complaint filed with a governing body is
sufficient notice in every case. Also, even adequate notice to former counsel
will not fulfil the “corroboration” requirement referred to by Justice
Teitelbaum. Both requirements need to be satisfied in each case.
[43]
The
Court has held in the past that a complaint to a governing body may be enough
to give a previous representative notice of an allegation of incompetence. I
agree. However, this will not always be the case and each tribunal has to reassure
itself that, on the facts before it, former counsel has been given adequate
notice and an opportunity to respond. In the present case the RPD is concerned
about adequate notice because it needs to have a full set of facts before it in
order to evaluate whether a previous representative actually was incompetent.
The RPD is appropriately reluctant to make a factual finding of this nature
without allowing for the previous representative to respond to the allegations
and provide an explanation.
[44]
In
this case, it was reasonable for the RPD to require more than just the
complaints to the LSUC or CSIC. The Applicants’ central allegation against
their previous representatives was that they failed to submit an English
translation of the Mohacsi Letter. They said in their submissions in support of
their request to reopen that they had “acted with great care in their case,
providing evidence of central importance to their case long before the
hearing.” This was an assertion of fact that may or may not have been correct.
The previous representatives may have had a legitimate explanation for why the
Mohacsi Letter was not translated before the hearing.
[45]
Although
they complained to the LSUC and the CSIC, the complaints the Applicants filed,
which they have reproduced in their application record, merely recite the
allegations they had made before the RPD. They did not provide any further
evidence to corroborate the allegations of incompetence. It was therefore
reasonable for the RPD to expect that the Applicants would provide further
corroboration and proof of adequate notice to their former representatives.
[46]
As
the Respondent points out, the Board’s conclusion that the complaints to the LSUC
and to the CSIC did not constitute adequate notice to previous counsel was
reasonable in light of the fact that the complaints were filed, at most, 10
days earlier.
[47]
There
is no evidence before this Court, and there was none before the RPD, as to
whether the governing bodies in question would have contacted previous counsel
within this time period. There is no evidence as to how long an investigation
would take. Furthermore, despite a complaint to the Law Society or CSIC, one
has to ask how the previous representatives would know that their competence
was being challenged in open Court, unless they were directly contacted by the applicants
making the assertion, and were given an opportunity to respond.
[48]
This
concern is reflected in Arndorfer, above, where upon the granting of
leave, the court issued a direction that the application record be served upon
previous counsel, and that the applicants waive solicitor-client privilege so
as to allow their former counsel to respond to the allegations of incompetence.
The waiver of solicitor-client privilege was required so the Court would have
the benefit of all the facts necessary to address the allegation of
incompetence.
[49]
I
find, then, that the RPD did not impose a dual requirement on the Applicants that
the case law says is not required. It reasonably concluded that the complaint
they filed was not enough in this case to meet the notice requirement.
[50]
Counsel
have referred me to a range of decisions from this court that deal with the
notice requirement. In some cases, for example Ghahremani, above, there
is a suggestion that notice of allegations of incompetence should be given to
former counsel as well as the regulatory body. Other cases, for example, M.A.C.,
above, at paragraphs 31 and 32, appear to suggest that the requirement to give
notice can be satisfied either when an applicant makes a complaint to a governing
body or when the applicant provides evidence that their previous representative
was informed directly of the allegations against them. There are also cases,
for example, in Ramiro and Gonzalez, above, where the obligations
upon an applicant are not entirely clear.
[51]
In
Betesh, above, Justice O’Reilly provided the following summary of his
view of the governing principles at paragraph 15:
The applicants acknowledge that they must meet a very strict test
in order to be granted a new hearing based on the incompetence of their
advisor. Justice Marshall Rothstein stated that a new hearing should be granted
only in the most exceptional cases: Huynh v. Canada (Minister of Employment and
Immigration), [1993] F.C.J. No. 642 (T.D.) (QL). Further, they must show
that there is a reasonable probability that the result would have been
different: Shirvan v. Canada (Minister of Citizenship and
Immigration), [2005] F.C.J. No. 1864, 2005 FC 1509. Generally speaking,
they must also show that the advisor was given notice of the allegation of
incompetence and a chance to respond: Shirvan,
above; Nunez v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J.
No. 555.
[52]
My
view of these cases is that none of them deal directly with the issue that the
Applicants assert before me: that notice to the relevant regulatory body will
always be enough to satisfy the notice requirement. Further, I do not see how
such a position can withstand scrutiny. It would mean that a claimant could
give notice to the relevant regulatory body in such a way and at such a time
that no response from previous counsel would be possible in the circumstances,
and still satisfy the notice requirement. I think this was very much the
concern of the RPD in the present case.
[53]
My
view of the cases is that the requirement for adequate notice can be satisfied
in several ways, but notice must always be adequate on the facts of each case.
Sometimes, a complaint to a governing body may suffice, and sometimes, such as
the present, something more will be needed to convince the RPD and the Court
that a former legal counsel or consultant has received adequate notice and has
been given a chance to respond. On the facts before it, the RPD felt that
notice to the governing bodies was not sufficient to satisfy it that adequate
notice had been given. The Applicants should also have informed their previous
representatives in a timely way so that the RPD could satisfy itself they had
been given a reasonable chance to respond and that it had the necessary facts
to assess the allegation of incompetence. On the facts before it, I do not
think the RPD made an error of law, or an unreasonable finding. But the matter
does not end here.
[54]
The
Applicants also argue that they were entitled to rely upon previous cases where
notice to the relevant regulatory body has been held as sufficient so that, if
the RPD did not think this was enough on the facts of this case, there was an
obligation to alert them to this deficiency and given them an opportunity to
correct the problem, or at least respond with further submissions. They say it
was procedurally unfair for the RPD to issue its Decision without doing this,
and that they are the victims of a breach of procedural fairness.
[55]
I
do not think this argument can be sustained. First of all, all applicants and
their counsel must be assumed to know that in every case where the incompetence
of previous counsel is alleged, the RPD and/or the court will seriously examine
(a) the bona fides of the complaint e.g. whether the applicant has
informed the relevant regulatory body and (b) whether the former representative
has been given adequate notice and a chance to respond. Sometimes, perhaps,
both issues can be satisfied by a complaint to the regulatory body, but this
will depend upon whether the complaints process has allowed for a response. There
is always, however, a danger that former counsel may not even know they are
being accused of professional incompetence in judicial review proceedings.
[56]
All
of this means that, in every case, because complaints against former counsel
are so easy to make, the onus remains on every applicant to convince the RPD,
or the court, that adequate notice has been given. The burden remains with applicants
and their counsel to satisfy the RPD and the court that, in their case, they
have given former counsel a reasonable chance to respond. Applicants and their
counsel must be deemed to understand that they must assess the situation
themselves and produce evidence to convince the RPD and the court that they
have done what is required of them in the circumstances of the case. The burden
cannot be avoided by looking for an arbitrary general rule, (e.g. that notice
to a regulatory body will always suffice) or by requiring the RPD to assess the
application and, if it decides adequate notice has not been given, to inform
the applicants of its concerns and give the applicants a further opportunity to
correct defects in their application.
[57]
I
do not think that procedural unfairness arises on the present facts because the
Applicants and their new counsel must be deemed to know the law and to know
they will be assessed on the basis of their application. If an application involves
an allegation of incompetence against former counsel, the tribunal and the
Court will require that adequate notice has been given on the facts of the case
and that former counsel has had an opportunity to respond. If applicants rely
solely upon notice to a regulatory body, then, as the case law teaches, this
may not always suffice. If an applicant is going to make an extraordinary
allegation of incompetence, then they must be prepared to satisfy the criteria
articulated by Justice O’Reilly in Betesh. If they have not done this,
they cannot demand prior notice from the RPD that they have not satisfied this
requirement, and an opportunity to rectify their application. In each case,
applicants and their counsel must assume the responsibility of ensuring that
adequate notice is given and previous counsel has had an opportunity to
respond. Considerable caution is required in this matter.
Certification
[58]
The
Applicants have proposed the following questions for certification:
i.
Where
an applicant alleges a breach of procedural fairness resulting from inadequate
representation, is the requirement to give notice always met by the filing of a
formal complaint to a regulatory body?
ii.
If
not, in a case where a formal complaint has already been filed with the
regulatory body:
a.
May
a decision-maker require, in addition, that the impugned representative be
advised directly of the basis for the complaint and provided an opportunity to
respond?
b.
Does
the duty of procedural fairness require that the decision-maker advise the
applicant of this additional notice requirement and provide an opportunity to
satisfy the requirement before rejecting the application?
[59]
The
Respondent opposes certification and says that, given the fact-specific nature
of the incompetence allegation in this case, it was reasonable for the RPD to
conclude the Applicants’ previous counsel ought to have been notified of the
allegations against them. The Respondent also says the Applicants’ failure to
file any evidence showing human rights activists are at a higher risk of
persecution in Hungary means any credibility assessment, which could have been
tainted by counsel incompetence, does not matter. The questions the Applicants
have proposed would not be dispositive of an appeal.
[60]
The
Federal Court of Appeal considered the test for certification in Zazai v Canada (Minister of Citizenship and Immigration) 2004 FCA 89 and affirmed the principle
that a certified question must be a question of general importance which would
be dispositive of an appeal. The question must also have been raised and dealt
with in the application for judicial review. Where the question does not arise,
or the applications judge decides it does not need to be dealt with, it is
inappropriate for certification. See paragraphs 11 and 12. In Boni v Canada (Minister of Citizenship and Immigration) 2006 FCA 68, the Federal Court of Appeal
held that a certified question must lend itself to a generic approach and yield
an answer of general application.
[61]
Given
what I have said in my judgment, the first question the Applicants have
proposed is not appropriate for certification. As I have held, whether
notification of the regulatory body satisfies the notice requirement is a
question of fact to be determined in all the circumstances. Answering this
question would require the Federal Court of Appeal to make a factual
determination applicable to all future cases where counsel incompetence is
alleged. This question does not lend itself to a generic approach or give an
answer of general application. Further, this question calls on the Federal
Court of Appeal to make a factual determination which is clearly within the
jurisdiction of the RPD.
[62]
With
respect to the second proposed question, I do not think it arises from my
decision in this case. As I have held, the RPD in this case did not impose an
additional notice requirement on the Applicants. What it found was that their
complaints to the LSUC and the CSIC were not sufficient to meet the requirement
to notify their previous representatives of the allegations against them. I
have also concluded that procedural unfairness does not arise in this case
because the Applicants must be taken to have known that adequate notice,
regardless of the form it took, was required. An answer to the second proposed
question would not be dispositive of an appeal so it is inappropriate for
certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that
1.
The
application for judicial review is dismissed.
2.
There
is no question for certification.
“James Russell”
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