Dockets: IMM-5374-16
IMM-5376-16
Citation:
2017 FC 911
Ottawa, Ontario, October 13, 2017
PRESENT: The
Honourable Mr. Justice Brown
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BETWEEN:
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ZINNIA
GUADALUPE HERNANDEZ OSUNA
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FRANCISCO
FRANCO GARCIA
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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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JUDGMENT AND REASONS
[1]
This matter consists of two applications for
judicial review under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [the IRPA] of decisions by a Member
of the Immigration Appeal Division [the IAD], dated December 7, 2016. In these
decisions, the Member determined that the Residency Obligation Appeal by the Applicants
was abandoned [Abandonment decision] after refusing the Applicants’ request to
postpone the ROA [Postponement decision].
[2]
In my view, the determinative issue is the lack
of procedural fairness in relation to the Member’s Postponement decision.
Briefly, the Applicant and her family came to Canada from Mexico in 2005 and
obtained permanent residence status in 2006. They have not returned to Canada
since leaving in 2006. Because the Applicants lacked 365 days residence in
Canada, their application for retention of status was rejected. They instituted
an appeal to the IAD.
[3]
The Applicants required an adjournment to obtain
documentation. The IAD granted the adjournment request and the hearing was rescheduled
for a later date, on a peremptory basis.
[4]
Unfortunately, on the day set for the hearing of
their appeal, their former counsel was ill as a result of sleep apnea. New counsel
filed former counsel’s affidavit, which was not disputed and which deposed:
[5] I suffer from Sleep Apnea and the
last two weeks prior to the hearing and I had only been able to sleep 3-5 hours
a day. During the two weeks prior to November 29, 2016, whenever I managed to
sleep I would get a suffocating attack and would wake up gasping for air, and
when I finally controlled my breathing, after vomiting, I would be fully awake
and unable to find sleep again. The latter caused me to sleep only 3-5 hours a
day and to spend my time working through files overnight. It is my belief in
hindsight that my Sleep Apnea worsen because I gained over 25 pounds in weight
and my condition led me to lose track of time.
[6] In my twenty years of practice, I
have never missed a court date.
…
[9] Upon realizing the above, I
immediately called the Appeal Division and requested a postponement and
directions as I have never missed a court date in my twenty years of practice
and had not been in this situation before. When I called the Registrar, the
hearing of the appeal had not yet started, and after relating my situation to
the Registrar, the Registrar informed me that she would speak to the Board
member assigned to the hearing and would call me back.
[10] I waited for the telephone call
from the Registrar, and then I received a call from the Registrar who informed
me that the Board member understood my situation but that he wanted me to put
it in writing and send it to him. At the time, I felt great relief that the
Board member understood my situation as it would have also been very unsafe for
me to drive from Richmond Hill to downtown Toronto in my condition.
[5]
It is apparent that former counsel’s message to
the IAD was received, because in refusing the request for postponement, the
Member did, “not take exception to the counsel’s
illness”. However, the Member dismissed the request for postponement
because, “there was no reason given why the appellants
did not call in to appear for the appeal hearing via teleconference.”
[6]
In my view, this raises an issue of procedural
fairness, i.e., the right to representation discussed in Hillary v
Canada (Citizenship and Immigration), 2011 FCA 51 at para 34 and see para
28. Questions of procedural fairness are reviewed on the correctness standard: Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43 and Mission
Institution v Khela, 2014 SCC 24 at para 79. In Dunsmuir v New
Brunswick, 2008 SCC 9 at para 50, the Supreme Court of Canada explained
what is required when conducting a review on the correctness standard:
When applying the correctness standard, a
reviewing court will not show deference to the decision maker’s reasoning
process; it will rather undertake its own analysis of the question. The
analysis will bring the court to decide whether it agrees with the
determination of the decision maker; if not, the court will substitute its own
view and provide the correct answer. From the outset, the court must ask
whether the tribunal’s decision was correct.
[7]
In my respectful view, the Postponement decision
was not fair in all the circumstances. There is no doubt that former counsel
suffered from an illness, which fact the Member accepted. The evidence that
former counsel called the Member’s staff before the hearing is not disputed. The
evidence that former counsel was waiting for directions back from the Member,
and was told to put the postponement request in writing, is consistent with former
counsel’s sending not only a letter, but also a physician’s letter and a copy
of a prescription for hypnotic medication, to the IAD. I should add that the
physician’s letter categorically stated that former counsel was “not fit” for work, and further advised former counsel
to abstain from work for two weeks.
[8]
Again with respect, in the circumstances, former
counsel had every reason to expect that there would be a postponement, and had
complied with the IAD’s request. As counsel for the Minister confirmed, this is
not a case of professional incompetence. In my view, it does not stem from
misconduct or disregard for the best interests of the clients. Instead, this is
a case of genuine documented and accepted medical illness, which differs qualitatively
from incompetence. I note this incident was without precedent in former
counsel’s twenty-year career at the bar. What happened here is not an
appropriate candidate for a complaint to the Law Society of Upper Canada, no
complaint was lodged and no one suggested otherwise.
[9]
The postponement was refused not because former
counsel was not present – that was not possible – but because the Applicants personally
did not call in. However, I am not satisfied the Applicants’ appeal would have
proceeded without their legal representative.
[10]
Originally, the Respondent also opposed judicial
review on the ground that section 71 of IRPA might be relied upon by the
Applicants as a separate basis to challenge the Postponement decision. However,
the Respondent withdrew this position at the hearing.
[11]
In the result the Postponement decision must be
set aside for redetermination. Logically then, the Abandonment decision must
also be set aside.
[12]
While the Applicants requested the certification
of a question of general importance relating to section 71, I decline to do so because
that issue is no longer before the Court and therefore is not dispositive: see
generally Liyanagamage v Canada (Secretary of State) (1994), 176 NR 4 at
paras 4-6; Zhang v Canada (Citizenship and Immigration), 2013 FCA 168
paras 7 to 10, and Zazai v Canada (Citizenship and Immigration), 2004
FCA 89 at paras 11-12.
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