Date:
20130611
Docket:
IMM-10209-12
Citation:
2013 FC 638
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Montréal,
Quebec, June 11, 2013
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
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ELIE KHALIL
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Applicant
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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
I. Introduction
[1]
The
applicant seeks judicial review of a decision by a member of the Refugee
Protection Division (RPD) of the Immigration and Refugee Board, dated August
22, 2012, wherein the member determined that the applicant is neither a
Convention refugee nor a person in need of protection pursuant to sections 96
and 97 of the Immigration and Refugee Protection Act, SC 2001, c 27
(IRPA).
[2]
The
applicant takes issue with the reasons provided by the RPD; specifically, he
claims that the member’s refusal to grant a postponement of the hearing in
light of the absence of his counsel constitutes a breach of procedural fairness.
Application
for postponement of hearing
[3]
The
applicant's hearing was held on May 9, 2012.
[4]
An
application for the postponement of the hearing was submitted to the RPD on
May 2, 2012, on the grounds that the applicant’s counsel had been
called to appear at an Immigration Appeal Division scheduling
conference, by the IAD itself, and therefore had been unable to
attend the applicant’s hearing. Following the rejection of this
first application by a coordinating member on May 4, 2012, on the basis that
these were not “exceptional circumstances” within the meaning of subsection
48(4) of the Refugee Protection Division Rules, SOR/2002-228, [repealed,
SORS/2012-256, s 73] (Rules), counsel for the applicant submitted a second
application to postpone the hearing by 90 minutes in order for him to be able
to represent his client. That application was rejected by the same coordinating
member, on the same grounds.
[5]
On
May 9, 2012, the member rejected another application for postponement, made at
the hearing by the lawyer replacing the applicant’s counsel, and decided that
the replacement lawyer’s name should be added to the record as counsel for the
applicant.
II. Issues
[6]
(1)
Did the member’s refusal to allow the application for postponement submitted on
the day of the hearing constitute a breach of the principles of procedural fairness?
(2)
Did the applicant have a fair opportunity to present his case, as the member
contended?
III. Standard of review
[7]
The
standard of review applicable to questions pertaining to natural justice and
procedural fairness is correctness (Sketchley v Canada (Attorney General),
2005 FCA 404, [2006] 3 FCR 392 at para 111; Aguilar v Canada (Minister of
Citizenship and Immigration), 2012 FC 561, 411 FTR 94 at para 15).
[8]
However,
with respect to the first issue, it should be noted that part of the case law
acknowledges that a reasonableness standard of review is applicable to
decisions of the Immigration and Refugee Board, and especially those of the Immigration
Appeal Division (IAD), not to grant a postponement because it essentially
requires an assessment of the factors of subsection 48(4) of the Rules and such
decisions must be considered in light of the Board’s discretion (Omeyaka v
Canada (Minister of Public Safety and Emergency Preparedness), 2011 FC 78
at para 13 and Cleopartier v Canada (Minister of Citizenship and Immigration),
2004 FC 1527 at para 4).
IV. Analysis
(1) Did the
member’s refusal to allow the application for postponement submitted on the day
of the hearing constitute a breach of the principles of procedural fairness?
[9]
Rule
48 of the Rules sets out the application process for changing the date of a
proceeding and establishes a framework within which the IAD may exercise its
discretion. Subsection 48(4) provides a non-exhaustive list of factors to be
taken into consideration by the RPD depending on the circumstances:
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48. (1) A party
may make an application to the Division to change the date or time of a
proceeding.
(2) The party must
(a) follow rule 44, but
is not required to give evidence in an affidavit or statutory declaration; and
(b) give at least six
dates, within the period specified by the Division, on which the party is
available to start or continue the proceeding.
(3) If the party wants to make
an application two working days or less before the proceeding, the party must
appear at the proceeding and make the application orally.
(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;
(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.
(5) Unless a party receives a
decision from the Division allowing the application, the party must appear
for the proceeding at the date and time fixed and be ready to start or
continue the proceeding.
[Emphasis
added.]
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48. (1) Toute
partie peut demander à la Section de changer la date ou l’heure d’une
procédure.
(2) La partie :
a) fait sa demande selon la
règle 44, mais n’a pas à y joindre d’affidavit ou de déclaration solennelle;
b) indique dans sa demande au
moins six dates, comprises dans la période fixée par la Section, auxquelles
elle est disponible pour commencer ou poursuivre la procédure.
(3) Si la partie veut faire sa
demande deux jours ouvrables ou moins avant la procédure, elle se présente à
la procédure et fait sa demande oralement.
(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;
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.
(5) Sauf si elle reçoit une
décision accueillant sa demande, la partie doit se présenter à la date et à
l’heure qui avaient été fixées et être prête à commencer ou à poursuivre la
procédure;
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[10]
The
respondent criticizes the applicant for not having approached the IAD in order
to have the proceedings submitted to an upcoming scheduling conference rather
than requesting the postponement of the hearing before the RPD. The respondent
further submits that the applicant was able to count on the services of a
competent lawyer who replaced his counsel to represent him and was able to
submit written representations to close out his arguments. Further, the
respondent argues that given the fact that the previous applications for
postponement had been refused, the applicant ought to have expected that the
member would insist that the case proceed that same day (Ruiz v Canada (Minister
of Citizenship and Immigration), 2008 FC 915 at para 15). Moreover, the
respondent, in a more general manner, argues that the right to counsel is not
an absolute right and that it is incumbent on the applicant to choose a counsel
who is able to appear on the date that has been set for the trial or hearing (Gapchenko
v Canada (Minister of Citizenship and Immigration), 2004 FC 427 at para
19).
[11]
With
respect and in all deference, the elements raised by the respondent, which
essentially correspond to the factors considered by the member, were not
sufficient to justify refusing a postponement in these particular circumstances.
[12]
First,
on reading the transcript of the hearing, it is clear that the successor lawyer
was not quite prepared to represent the applicant. He told the member several
times that he had only been able to review the docket on the eve of the hearing,
that he was accompanying the applicant to make an application for postponement and
not to proceed in place of the applicant’s counsel, and that his lack of
experience compared to that of the applicant’s counsel was another factor to
consider. But the member did not consider either the time the lawyer was given
to prepare or his lack of knowledge of the applicant’s docket. Even if he
stated that the successor lawyer had an adequate knowledge of the docket in the
reasons for his decision, the member himself complained about this lawyer not
“being ready with the docket” when the latter requested a break of five to ten
minutes in order to prepare the questions he was going to ask the applicant.
[13]
All
of this leads the Court to conclude that, by the refusal of his application for
adjournment validly submitted one week prior to the hearing, the applicant
suffered prejudice that has more to do with the denial of his right to a fair
hearing than with his right, though not absolute, to be represented by counsel.
This is particularly true given that there was no apparent reason for the
refusal of the application for postponement.
[14]
If
a refugee claimant must not be deprived of a proper hearing due to his or her
counsel’s absence, it stands to reason that an application for postponement
must not be refused on the sole basis that the applicant is being assisted by
another lawyer for the purpose of submitting the application for postponement.
[15]
Furthermore,
the member was somewhat insensitive to the applicant’s particular circumstances
and to the prejudice that could befall him as a result of his lawyer’s absence.
According to the case law of this Court and that of the Federal Court of Appeal,
other factors may be relevant to an analysis based on subsection 48(4) of the
Rules, such as the efforts made by the applicant to secure legal representation
and whether he or she can be faulted for not being ready to proceed (Vazquez
v Canada (Citizenship and Immigration), 2012 FC 385, 407 FTR 167 at para
12; Golbom v Canada (Citizenship and Immigration), 2010 FC 640, at
para 13; Siloch v Canada (Minister of Employment and Immigration),
[1993] FCJ No 10 (QL/Lexis) (FCA); Modeste v Canada (Minister of Citizenship
and Immigration), 2006 FC 1027 at para 15; Sandy v Canada (Minister of
Citizenship and Immigration), 2004 FC 1468, 260 FTR 1 at para 52).
[16]
To
be sure, the fact that the member provided an extension of time to the lawyer
to submit his written representations by May 30, 2012, allowed him to conclude
his arguments. However, this could not substitute for the applicant’s right to
fully present his case in these particular circumstances.
[17]
The
Court concludes that the member erred in refusing the application for
postponement submitted by the successor lawyer.
(2) Did the
applicant have a fair opportunity to present his case, as the member contended?
[18]
The
Court acknowledges that “energetic
questioning by a Board member and frequent interruptions will not necessarily
give rise to a reasonable apprehension of bias, especially if the intervention
is to clarify a claimant's or witness' testimony”(Chamo v
Canada (Minister of Citizenship and Immigration), 2005 FC 1219 at
para 12).
[19]
The
applicant should not have had to endure the pressure and lack of time that
resulted from his lawyer’s absence and the refusal of the adjournment.
V. Conclusion
[20]
For
all of the aforementioned reasons, the applicant’s application for judicial
review is allowed and the matter is remitted for reconsideration before a
differently constituted panel. (To avoid additional delays, the Court suggests
that the hearing be scheduled on a peremptory basis.)
JUDGMENT
THE
COURT ORDERS AND ADJUDGES that the application for judicial
review be allowed and the matter be remitted for reconsideration by a
differently constituted panel. No question of general importance arises for
certification.
“Michel M.J. Shore”
Certified true
translation
Sebastian
Desbarats, Translator
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