Date: 20070517
Docket: IMM-3150-06
Citation: 2007 FC 531
Ottawa, Ontario, May17, 2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
PEIHUA
WANG
Applicant(s)
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent(s)
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review brought by the Applicant, Peihua Wang,
from a decision of the Refugee Protection Division of the Immigration and
Refugee Board rendered at Toronto on May 17, 2006. Ms.
Wang has challenged that decision on several grounds but, in the circumstances,
I need only deal with one of them, that being the fairness of the hearing.
Background
[2]
Ms.
Wang came to Canada from China in 2005 and
alleged that, as an ardent practitioner of Falun Gong, she would face the risk
of persecution if she was required to return home.
[3]
Ms.
Wang alleged that she had practised Falun Gong since 1996. After the Chinese
authorities cracked down on the movement in 1999, she maintained her practice
but not as openly as before. Nevertheless, she continued to promote Falun Gong
to others including those at her workplace. This, she said, caused problems
for her with her employer and led to her resignation.
[4]
In
2005, Ms. Wang entered Canada with a visitor’s visa for the purpose of
attending her daughter’s wedding and graduation. Within three (3) days of
arriving in Ontario, Ms. Wang
joined a Falun Gong practice group and became active in the Canadian movement.
This included her participation in weekly public gatherings at the Chinese Consulate.
It was on the basis of this prior history that Ms. Wang made her claim to
refugee protection.
The Board Decision
[5]
The
Board rejected Ms. Wang’s claim on the basis of a number of findings of
inconsistency and implausibility related primarily to her alleged history of Falun
Gong activity in China. The Board accepted that she was a Falun Gong
practitioner in China albeit not to the extent she had claimed. The
Board also accepted that she had been active with Falun Gong in Canada but it found
that conduct to be “opportunistic”.
[6]
For
the purposes of this decision, it is unnecessary to comment on the
reasonableness of the Board’s evidentiary findings beyond observing that Ms.
Wang was not questioned on all of the points that later troubled the Board.
Certainly, it is good practice to afford a claimant the opportunity to respond
to the Board’s plausibility concerns before making adverse findings.
[7]
The
determinative issue in this case concerns the Board’s refusal to hear a
proposed expert witness for Ms. Wang, namely Jason Loftus from the Falun Dafa
Association of Canada. In previous cases before the Board, Mr. Loftus had been
permitted to testify about the risks facing Falun Gong practitioners and their
families in China and about
the particular vulnerabilities of affected refugee claimants.
[8]
The
record discloses that an outline of Mr. Loftus’ views and his curriculum vitae
were filed with the Board well in advance of the hearing, albeit that formal
notice of the intention to call him as a witness was not given as required by
Rule 38 of the Refugee Protection Division Rules (Rules), S.O.R./2002-228.
The basis for the Board’s decision to refuse to hear testimony from Mr. Loftus
is contained within the following transcript passages:
COUNSEL: Yes.
So, C-1 is the proposed Personal Information Form. C-2 we propose, with your
leave, Mr. Chair, that it be a package that was sent – that was received by the
Board on January 30th, 2006. It basically includes pages one to 24
of the package. The background résumés of different witnesses that we have
from the Falun Dafa Association. We never know, as we have discussed this
issue in the past, Mr. Chair, we never know until the day of the hearing which
of the three representatives are going to be before the Board. So, you have
the résumés of all of them, including I think for today’s purposes, at pages
two to ---
PRESIDING MEMBER: All
right. Counsel, stop. Just stop. Stop. One of the requirements of any
refugee hearing is that if witnesses are to appear, the Board must be notified
at least 20 days before the hearing, and if as you say, you are not able to
tell which one is going to appear. Yes, fine, you can do this, but it must be
done in a timely manner. Also, you should include the area of testimony that
will be given by the witness. I see nothing in my file to indicate that the
Board was informed that any witness will be appearing. Did you send any such
information, Counsel?
COUNSEL: What
we sent, and what is accepted by all your colleagues, is the résumés and the
background information of all the witnesses. Mr. Loftus’ document is in C-2,
Mr. Chair.
PRESIDING MEMBER: Counsel,
I am not – Counsel, please. Please. Don’t believe by continuous talking you
are going to get me off track. Just listen, please. Do you know something
that I really don’t like, is Counsels to tell me what my colleagues do. That
has nothing to do with me. The rules clearly state that if a witness is to
appear, the Board is to be notified 20 days in advance. That has not been
done.
After hearing
testimony from Ms. Wang, her counsel again raised the issue of hearing evidence
from Mr. Loftus in the following passage:
PRESIDING MEMBER: Okay.
Counsel, are you ready with you submissions?
COUNSEL: Mr.
Chair, can I have Mr. Loftus say a couple of words?
PRESIDING MEMBER: What
is that?
COUNSEL: Can
I have Mr. Loftus say a couple of words?
PRESIDING MEMBER: No.
No. No.
COUNSEL: No?
PRESIDING MEMBER: No.
[Quoted from original text]
It is from this ruling that Ms. Wang seeks
relief in the form of a new hearing of her claim to protection.
Issues
[9]
(a) What
is the appropriate standard of review?
(b)
Did the Board err by refusing to hear expert testimony on behalf of Ms. Wang?
Analysis
[10]
The
determinative issue raised on this application is one of procedural fairness
and, as such, does not engage a functional and pragmatic assessment. The
applicable standard for review is correctness: see Benitez v. Canada (Minister
of Citizenship and Immigration), [2006] FCJ No. 631, 2006 FC 461 at para.
44.
[11]
The
question that must be resolved on this application is whether the Board was
correct in refusing to allow Mr. Loftus to testify on behalf of Ms. Wang on the
basis of the failure to strictly fulfil the requirements of Rule 38 which
provides:
|
38.
(1) If a party wants to call a witness, the party must provide in writing to
any other party and the Division the following witness information:
(a) the witness's contact information;
(b) the purpose and
substance of the witness's testimony or, in the case of an expert witness,
the expert witness's signed summary of the
testimony to be given;
(c) the time needed for the
witness's testimony;
(d) the party's relationship to the witness;
(e) in the case of an expert
witness, a description of the expert witness's qualifications; and
(f) whether the party wants
the witness to testify by videoconference or telephone.
Proof that document was
provided
(2) The witness information must be
provided to the Division together with a written statement of how and when it
was provided to any other party.
Time
limit
(3) A document provided under this rule
must be received by its recipient no later than 20 days before the hearing.
Failure
to provide witness information
(4) If a party does not provide the
witness information as required under this rule, the witness may not testify
at the hearing unless the Division allows the witness to testify.
|
38.
(1) Pour faire comparaître un témoin, la partie transmet par écrit à l'autre partie, le cas échéant, et à la
Section les renseignements suivants :
a) les coordonnées du
témoin;
b) l'objet du témoignage ou,
dans le cas du témoin expert, un résumé, signé par lui, de son témoignage;
c) la durée du témoignage;
d) le lien entre le témoin
et la partie;
e) dans le cas du témoin
expert, ses compétences;
f) le fait qu'elle veut faire comparaître le témoin
par vidéoconférence ou par téléphone, le cas échéant.
Preuve de transmission
(2) En même temps que la partie
transmet à la Section les renseignements visés au paragraphe (1), elle lui
transmet une déclaration écrite indiquant à quel moment et de quelle façon
elle a transmis ces renseignements à l'autre partie, le cas échéant.
Délai
(3) Les documents transmis
selon la présente règle doivent être reçus par leurs destinataires au plus
tard vingt jours avant l'audience.
Omission de transmettre les
renseignements
(4) La partie qui ne
transmet pas les renseignements concernant les témoins selon la présente
règle ne peut faire comparaître son témoin à l'audience, sauf autorisation de
la Section.
|
[12]
The
Board may, of course, excuse a party from compliance with any of its Rules and
it has the discretion to extend or shorten any time limits: see Rule 69.
[13]
One
of the fundamental elements of a refugee claimant’s right to a fair hearing is
the opportunity to present evidence to the Board. This point is recognized in Singh
v. Canada (Minister of Employment and Immigration), [1985] 1 S.C.R. 177, [1985] S.C.J. No. 11, where Justice Bertha
Wilson observed at para. 57:
57 All
counsel were agreed that at a minimum the concept of "fundamental
justice" as it appears in s. 7 of the Charter includes the notion of
procedural fairness articulated by Fauteux C.J. in Duke v. The Queen,
[1972] S.C.R. 917. At page 923 he said:
Under s. 2(e)
of the Bill of Rights no law of Canada shall be construed or applied so as to deprive him of "a fair
hearing in accordance with the principles of fundamental justice". Without
attempting to formulate any final definition of those words, I would take them
to mean, generally, that the tribunal which adjudicates upon his rights must
act fairly, in good faith, without bias and in a judicial temper, and must
give to him the opportunity adequately to state his case.
[Emphasis added]
[14]
The
importance of the right to call evidence in the administrative law context was
also recognized by the Federal Court of Appeal in Timpauer v. Air Canada and
Canada Labour Relations Board, [1985] F.C.J. No. 184, [1986] 1 F.C. 453
(C.A.), where Justice Arthur Stone stated at para. 17:
17 In concluding that natural justice
was denied, I am mindful of the fundamental importance in the interest of a
fair inquiry that a tribunal afford a party the opportunity of calling his
witnesses and of otherwise making his case before disposing of the matter one
way or the other…
[15]
The
right to make one’s case is, of course, subject to reasonable limitations
including those established by Rule 38. Nevertheless, it is well understood
that the exercise of discretion by a decision-maker to refuse to hear evidence
on behalf of an interested party must be carried out in a principled way even
where a party has not observed a non-mandatory procedural prerequisite. These
points are duly noted by David J. Mullan in his text Administrative Law (Toronto: Irwin Law,
2001), where, at page 291, he discussed the elements of proper decision-making
in this context of procedural fairness:
Administrative tribunals and agencies
have control over the conduct of their proceedings and this includes the ability
to place limits on the right of parties to adduce evidence and to make
submissions in support of their position. Without such authority, decision
makers would be in the thrall of anyone anxious to disrupt the timely operation
of the administrative process. Nonetheless, the exercise of these powers is
conditioned by a number of considerations. Generally, it will depend on an
appropriate judgment by a tribunal that further evidence or submissions should
not be permitted on the basis of inadmissibility, irrelevance, or repetition.
An erroneous assessment on any of these bases can lead to a reviewable denial
of procedural fairness.
Far more controversial, however, is the
extent of the entitlement of tribunals to limit participatory rights simply by
reference to considerations of efficiency and the need for the expeditious
carrying out of the statutory mandate. Indeed, even in the common situation
where the relevant legislation provides that a tribunal is to proceed
expeditiously, courts have been reluctant to allow this a basis for denying the
right to call witnesses who may add something of relevance to the matter under
consideration. There is also precedent condemning a policy of confining
hearings to a set length at least when it can be established that rigid
adherence to the policy in the particular case would potentially affect the
normal natural justice entitlements of a participant.
[Emphasis added]
[16]
Here,
the Board had the discretion to hear Mr. Loftus’ evidence notwithstanding the
failure to fulfill the conditions of Rule 38 and it had a corresponding
obligation to consider doing so on the basis of relevant factors.
[17]
It
is obvious that the Board in this case failed to exercise its discretion
judicially because it failed to take account of a number of important
considerations required for the proper exercise of that discretion. Those
considerations could include the assessment of the potential importance or
relevance of the proposed evidence to the matters in issue, the extent to which
the requirements of the Rule had been met, the adverse effects, if any, on the
efficiency of the hearing, any resulting prejudice to the Board or other
involved parties along with the possibility that such prejudice might be
mitigated by means other than a refusal to receive the evidence.
[18]
In
this case, Mr. Loftus had been identified in the documentary record. A general
outline of what he could offer as a witness was also provided to the Board more
than twenty (20) days in advance of the hearing. His intended evidence was
directly related to one of the determinative issues in the case. All that was
missing was a clear indication that Ms. Wang intended to call him as a
witness. Nevertheless, the Board asked no questions to determine the
significance of Mr. Loftus’ evidence or to discern the reasons for the failure
to strictly comply with Rule 38. Instead the Board treated that technical
non-compliance as the sole basis for its decision to refuse to hear Mr. Loftus.
[19]
While
there is certainly value in maintaining a degree of efficiency around the
Board’s evidence-gathering functions, that consideration alone does not trump
the fundamental obligation to afford to a refugee claimant the fair opportunity
to call evidence. Indeed, as was noted in Singh, above, at para. 70, administrative
efficiency, in this context, cannot be achieved at the expense of fairness and
due process:
Seen in this light I have considerable
doubt that the type of utilitarian consideration brought forward by Mr. Bowie
can constitute a justification for a limitation on the rights set out in the
Charter. Certainly the guarantees of the Charter would be illusory if they
could be ignored because it was administratively convenient to do so. No doubt
considerable time and money can be saved by adopting administrative procedures
which ignore the principles of fundamental justice but such an argument, in my
view, misses the point of the exercise under s. 1. The principles of natural
justice and procedural fairness which have long been espoused by our courts,
and the constitutional entrenchment of the principles of fundamental justice in
s. 7, implicitly recognize that a balance of administrative convenience does
not override the need to adhere to these principles. Whatever standard of
review eventually emerges under s. 1, it seems to me that the basis of the
justification for the limitation of rights under s. 7 must be more compelling
than any advanced in these appeals.
Conclusion
[20]
The
Board’s handling of this issue breached the duty of fairness owed to Ms. Wang
and the matter must be remitted to a differently constituted panel of the Board
for redetermination on the merits.
[21]
The
Respondent declined to propose a question for certification and no issue of general
importance arises on this record.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is allowed with the matter
to be remitted to a differently constituted panel of the Board for
redetermination on the merits.
"R. L. Barnes"
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