Ashour v. Canada (Minister of Citizenship and Immigration), docket IMM-3201-97

Date: 19980511

Docket: IMM-3201-97

BETWEEN:

     AHMED KHALID ASHOUR,

     Applicant,

     - and -

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

MCKEOWN, J.

[1]      The applicant seeks judicial review of a decision of the Immigration and Refugee Board, Appeal Division, in which the applicant's appeal from a stay of deportation was dismissed. The issue is whether service of the notice to appear on a Rule 33 hearing of the Appeal Division is sufficient if it is served upon the applicant only when the applicant has counsel on the record and also whether the failure to serve either the applicant or the counsel on the record with the application pursuant to Rule 33 constitutes reversible error.

[2]      The applicant was a sixteen year old boy, citizen of Somalia when he arrived in Canada in January 1990. On April 5, 1991, the mother of the applicant was found to be a Convention refugee and on October 21, 1992, the applicant became a permanent resident. The applicant was convicted in Ottawa in 1994 of certain criminal offenses and as a result, the respondent began deportation proceedings. On March 22, 1995, an adjudicator ordered that the applicant be deported. The applicant appealed this decision to the Appeal Division.

[3]      On May 25, 1995, the tribunal heard the applicant's appeal. The applicant was represented by counsel, Mr. Morris, who remained the applicant's counsel throughout the tribunal's proceedings. On May 31, 1995, the Appeal Division ordered that the deportation be stayed and that the applicant be required to return to the Appeal Division for another review of the stay in six months time. On November 7, 1995, the applicant and his solicitor, Mr. Morris, were served with a notice to appear at a hearing on November 21, 1995. The Appeal Division decided to continue the applicant's stay of his deportation order subject to a further oral review within 1 year.

[4]      On February 7, 1997, the Minister filed an application pursuant to Rule 33 to revoke the stay. Under Rule 33(c) this application was supposed to be served on the other party, ie. the applicant. There was no evidence before the Court that this application was served on either the applicant or Mr. Morris, his counsel on the record. On April 18, 1997, the applicant was served with a notice of hearing by regular prepaid post. However, there was no attempt to serve the applicant's counsel on the record. The notice of hearing was sent to the applicant's last reported address. However, as stated in his own affidavit, the applicant had moved to Vancouver in January 1997 but did not notify the Minister or the Appeal Division of his address change, notwithstanding that it was one of the conditions of the stay of the deportation order. The applicant stated that he did not bother to notify them since his former address was his mother's address and she would have informed him of any mail.

[5]      At the hearing on May 20, 1997, the applicant or his counsel did not appear. On May 28, 1997, the Appeal Division dismissed the appeal and directed that the removal order against the applicant be executed as soon as possible.

[6]      The respondent submitted that the applicant had been properly served with the notice of hearing when the notice was sent to his last reported address by prepaid mail on April 18, 1997. I agree with this submission and I rely on Létourneau, J.A. in Hall v. Canada (Minister of Employment and Immigration) (1994), 25 Imm.L.R. (2d) 1 at 6:

This applicant was under the same obligation as a condition of his stay of deportation by the Appeal Division and the applicant acknowledges in his affidavit that he was aware of the condition. Furthermore, I agree with Teitelbaum, J. in Mussa v. Canada (Immigration Refugee Board) (July 18, 1994) in action number IMM-6043-93 at page 2 where he states:

[7]      As stated earlier, in the case at bar, the applicant was clearly aware of his obligation to keep Immigration apprised of his current address as is evident by his affidavit in support of his Leave Application. However, in none of the cases put before me by counsel did the Minister fail to serve counsel on the record. In one case, the notice was served on the solicitor who then informed the Board that he had not yet been retained for the matter. In the case before me, the Minister had served Mr. Morris, the applicant's solicitor, with both previous notices to appear but did not with the April 1997 notice to appear. Furthermore, in the present case, as I stated earlier, neither the applicant nor the Minister was served with the application. Therefore the applicant only had a notice to appear which did not indicate what the matter concerned other than to state that it was a Rule 33 hearing. Rule 33 clearly sets out that the other party is to be served and the onus is on the Minister to show that the applicant was served. There is no evidence before me to show that the Minister served either the applicant or counsel on the record.

[8]      I note that the Rule 35(2) provides that a copy of any document served on a party pursuant to sub-rule (1) shall also be served on that party's counsel, if any. There is no doubt in this case that Mr. Morris was the counsel on the record and he was served on the previous two occasions. For some reason, he was not served with the notice to appear or the application in 1997. This case, in my view, raises the question of whether counsel on the record is a meaningless designation. I do not need to reiterate the importance of counsel's role before the courts. However, if opposing counsel does not serve counsel on the record with documents such as a notice to appear and an application, it is impossible for counsel on the record to perform his or her function. The object of service is to give notice to a party who will or may be affected by the tribunal order so that the party may be aware of or may be able to resist that which is sought against him. When a party retains counsel and counsel appears on the record, the party is entitled to believe that counsel is being informed of significant steps in a proceeding. Parties retain counsel, inter alia, to represent the person at any Court hearing concerning the issues in question. In my view, an application to remove a stay is a very significant step which should be served on counsel on the record. Furthermore, in this case, neither the applicant nor his counsel was served with the application under Rule 33. As I stated earlier, the applicant is deemed to have received the notice to appear but this does not provide the applicant with any information to enable him to determine why he is supposed to appear. It is the application that indicates that purpose of the hearing is to obtain an order "that the stay be revoked and his appeal be dismissed and to direct the removal order be executed as soon as reasonably practical". In my view, the applicant did not receive a notice which enabled him to determine the case he had to meet.

[9]      In light of the Appeal Division's decision to dismiss the applicant's appeal without requiring that its own Rules, with respect to service on counsel and service of the application under Rule 33 be followed, it is my opinion that this constitutes a violation of the principles of fundamental justice. Therefore, the application for judicial review is allowed. The Appeal Division's decision of May 28, 1997, is hereby set aside and the matter is returned to the Appeal Division for a rehearing and redetermination in a manner not inconsistent with these reasons. In particular, the applicant shall be served at his last known address in Vancouver and his new counsel, Mr. Buahene, should be served with the application and thence forward the Appeal Division's Rule shall operate.

                             William P. McKeown

                             ________________________

                             Judge

OTTAWA, Ontario

May 11, 1998..