Docket: IMM-1611-14
Citation:
2015 FC 559
Toronto, Ontario, April 29, 2015
PRESENT: The
Honourable Mr. Justice Diner
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Docket: IMM-1611-14
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BETWEEN:
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SADAF BASHARAT
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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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JUDGMENT AND REASONS
I.
Overview
[1]
This is a judicial review of a decision [Decision]
dated March 14, 2014, in which a Member [Member, Board] of the Refugee
Protection Division [RPD] of the Immigration and Refugee Board [IRB] of Canada
declined to re-open a claim for refugee protection. The Applicant seeks an
Order quashing the Decision of the Member and re-opening the claim, which would
have the effect of requiring the RPD to assess the claim on its merits.
II.
Facts
[2]
The Applicant is a citizen of Pakistan who entered Canada on November 20, 2013. Her basis of claim [BOC] form indicates that she
is a member of the Christian minority in Pakistan, who fears persecution by
Muslim extremists (Applicant’s Record, p 58). Her claim was never adjudicated
on its merits by the RPD, for the following reasons.
[3]
After her arrival to Canada, she retained an
immigration consultant [Consultant] who claimed he would file her BOC,
allegedly signed on December 2, 2013, by the required December 9, 2013 deadline.
She deposes that he not only failed to do so, but that she was not made aware
that she was required to attend a proceeding held by the RPD on December 16,
2013 to explain why she had failed to file her BOC.
[4]
After receiving a decision on December 20, 2013
declaring her claim abandoned, she spoke to her Consultant, who assured her
that he had contacted the Board to resolve the matter, and her hearing was to
proceed as originally scheduled on January 21, 2014. The day before the
hearing, her Consultant called to inform her that the RPD hearing was not going
to proceed as scheduled because the Member was not available. He told her that
he would keep her posted as to when the hearing was rescheduled.
[5]
The Applicant later received a decision by the
RPD dated January 28, 2014 dismissing an application to re-open her refugee
claim. In its reasons, the Member concluded that the reason proffered to the
Board as to why the Applicant could not make the December 16, 2013 abandonment
hearing, namely because her mother had been ill, was not sufficient to re-open
the case since she could have instructed her Consultant to outline these
circumstances at the abandonment hearing (Certified Tribunal Record [CTR], p
157). The Applicant, however, deposes that this decision caught her by
surprise, as she hadn’t known that an application to re-open had even been
filed by her Consultant, and to her knowledge, her claim was in good standing
and the delay in the hearing of her claim was just a matter of accommodating
the Member’s schedule.
[6]
On February 28, 2014, the Applicant filed
another application to re-open, which is the basis of this judicial review.
Upon hearing the arguments that Ms. Basharat’s Consultant had failed in his
duties to act honestly and competently, the Member, in declining to re-open the
application for a second time, relied on Pusuma v Canada (Citizenship and
Immigration), 2012 FC 1025 [Pusuma] and an IRB practice note [Lexchange]
to conclude that the Applicant erred in failing to file a complaint to her
Consultant’s regulatory body:
[16] In this case, the applicant has
failed to file any evidence such as a letter of complaint with details to the
appropriate regulatory body as required as per the case cited and the practice
note.
[17] The request to re-open is therefore
denied.
(CTR, p 7)
III.
Issue
[7]
The central issue in this case turns on the
following question: Does an allegation of incompetence require the notification
of a professional regulatory body?
IV.
Standard of Review
[8]
The decision of whether or not to re-open a
refugee claim is a question of mixed fact and law. The factual circumstances of
an applicant are informed by the common law governing the legal exercise of
discretion. As previously held by this Court, the standard of review for such
decisions is reasonableness, meaning the decisions are entitled to deference if
they are justifiable, intelligible and transparent, and defensible on the facts
and the law (Yan v Canada (Citizenship and Immigration), 2010 FC 1270 at
para 21; Bagri v Canada (Citizenship and Immigration), 2013 FC 968 at
para 11; Dunsmuir v New Brunswick, 2008 SCC 9 at paras 47, 53).
V.
Analysis
[9]
The Refugee Protection Division Rules (SOR/2012-256)
[Rules] are the statutory instrument which governs applications to re-open
refugee claims. When an applicant alleges incompetent counsel, (a term that
includes both lawyers and consultants), she is required by the Rules to
provide a copy of the application to the impugned consultant or lawyer, as well
as to the RPD:
62(4) If it is alleged in the application
that the claimant’s counsel in the proceedings that are the subject of the
application provided inadequate representation,
(a) the claimant must first provide a
copy of the application to the counsel and then provide the original
application to the Division, and
(b) the application provided to the
Division must be accompanied by a written statement indicating how and when the
copy of the application was provided to the counsel.
[10]
The Respondent does not contest, and the reasons
of the Member indicate, that the Applicant informed her Consultant of her
second application to re-open her claim (CTR, p 3, para 11). The Applicant does
not deny her failure, during the period under review, to follow through on her
complaint to the Immigration Consultants of Canada Regulatory Council [ICCRC],
the body responsible for regulating the conduct of her Consultant (which she
asserts to have done since).
[11]
So, we are left with a straightforward question
– was the Applicant in this case required to submit a complaint to her
Consultant’s regulatory body in order to re-open her claim on the basis of
incompetent representation? In my view, she was not.
[12]
The Respondent relies on the following passage
from Justice Russell in Pusuma in defending the Member’s Decision:
[42] 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.
[13]
Justice Russell, however, goes on to reject the
very approach advocated by the Respondent in this 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….
….
[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….
[Emphasis added]
[14]
It is clear that a paramount concern when
allegations of incompetent counsel are submitted is the ability for the former
consultant or lawyer to justify their conduct on the file. While complaints to
a regulatory body may serve to corroborate claims of incompetence, they should
not be perceived as requirements to making such an allegation. Indeed, I have
previously held that the results of disciplinary bodies are not binding in the
determination of whether counsel has acted incompetently (Guadron v Canada (Citizenship and Immigration), 2014 FC 1092 at para 16).
[15]
In short, this Court has recognized that
informing a regulatory body and informing former counsel as disjunctive and
sufficient, but not necessary, elements in an allegation of incompetence (Kavihuha
v Canada (Citizenship and Immigration), 2015 FC 328 at para 24 [Kavihuha];
Cromhout v Canada (Citizenship and Immigration), 2009 FC 1174 at paras
31-32; Betesh v Canada (Citizenship and Immigration), 2008 FC 173 at
para 17).
[16]
For instance, Kavihuha, a case released
earlier this year by Justice Zinn, held:
[24] Secondly, the respondent notes that
the applicants did not make a complaint to the law society or governing body
and it submits that the case law advocates that a law society complaint should
be filed or at the very least, adequate notice must be given so that counsel
has an opportunity to respond. The authorities cited by the respondent
(Pusuma v Canada (Minister of Citizenship and Immigration), 2012 FC 1025 at
paras 55-56 and Nuenz v Canada (Minister of Citizenship and Immigration,
[2000] FCJ No 555 (FCTD) at para 19), do not explicitly require that a law
society complaint be made; rather, the issues that have to be considered by the
court are whether the complaint is bona fide and whether the former
counsel had an opportunity to respond. This may be adequately
demonstrated where, as here, the applicants provide adequate notice to their
former counsel.
[17]
There are four practical reasons that support
this conclusion. First, and most importantly, the procedural guidance of the
IRB itself leads to this conclusion. Rule 62(4), reproduced above, makes no
mention of need to advise the regulatory body. Rather, it only contemplates
putting former counsel on notice.
[18]
Second, if procedure in this Court is to be used
as a measuring stick, the March 7, 2014 Procedural Protocol released by the
Chief Justice, entitled Re: Allegations Against Counsel or Other Authorized
Representative in Citizenship, Immigration and Protected Person Cases before
the Federal Court, imports no requirement for the applicant to commence a
complaint to the appropriate provincial or federal governing body when improper
conduct is alleged in applications for leave and for judicial review before the
Federal Court.
[19]
Third, to hold otherwise would invite complaints
to professional bodies as a matter of legal recourse, even in circumstances in
which they may not be justified or necessary. For example, such an approach
would require a complaint to a professional body even when a lawyer or
consultant admits to having acted negligently. The bodies would be inundated
with these complaints, for instance, for numerous types of immigration-related
refusals, as a prophylactic measure. This result would defy common sense and
undermine the integrity of legitimate complaints. It could also compromise the
civility between counsel promoted by both law societies’ professional conduct
rules and the ICCRC’s Code of Professional Conduct. The legal and consulting professions
are self-regulated, and both are under a duty to act with courtesy and
professionalism towards their colleagues.
[20]
Fourth, the Lexchange practice note, dated
October 2000, is a dated directive that Applicant’s counsel estimated has been
obsolete for a decade, and which the Respondent did not deny or counter.
Indeed, even if the note remains in place today–for which there is no
evidence–(i) it is inconsistent with Rule 62(4) discussed above, which takes
precedence over unlegislated policy, and (ii) the Member misinterpreted the old
note to conclude that a complaint had to be filed with the regulator; the note,
in fact, said nothing of the sort.
VI.
Conclusion
[21]
Given the Member’s position on the requirement
that the Applicant submit a complaint to the ICCRC, she did not address the
merits of whether the Applicant’s former counsel had acted negligently.
Consequently, and for the reasons above, I find the Member’s Decision to be
unreasonable, and allow the judicial review. The issue of whether the claim
should be re-opened will be sent back to the RPD for redetermination by a
different decision maker. There was no question for certification proposed by
the parties.
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