Date: 19981030
Docket: IMM-5253-97
BETWEEN:
DOUES ABDELHAR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
and
REASONS FOR NOTICE UNDER RULE 404(2),
FEDERAL COURT RULES, 1998
BLAIS J.
[1] The applicant filed an application for leave to commence an application for judicial review under section 82.1 of the Immigration Act. The applicant asks that the tribunal"s decision be set aside and that the matter be sent back for consideration by a panel that is otherwise constituted.
[2] McGillis J. rendered an order on August 5, 1998 setting down the hearing of the application for judicial review by the Federal Court for Wednesday, October 21, 1998 at 11:30 a.m., in the Federal Court of Canada, 30 McGill Street, Montréal.
Page: 2
[3] The said order was communicated to the parties by the Federal Court on August 6, 1998.
[4] The applicant is a citizen of Algeria and arrived in Canada on January 26, 1995. It appears from his file that an abandonment was entered on November 2, 1995.
[5] The Immigration and Refugee Board gave the applicant a new opportunity to present his application and to that effect the Refugee Division sent a notice to appear for the hearing of his claim, which was set down for June 19, 1997.
[6] On June 19, 1997, the applicant reported for his hearing, but his solicitor, Ms. Marie-José Blain, was absent. Thirty minutes later, the Refugee Division received a letter by fax informing it that Ms. Blain, the claimant"s counsel, was ill.
[7] On the same date, the Refugee Division agreed to grant the applicant a postponement, while informing him viva voce that this was a peremptory postponement. The Division clearly told the applicant what this meant and the risks he incurred if he did not proceed at the forthcoming date. The Division explained to the applicant that he should proceed at the forthcoming hearing date with or without his solicitor, and the applicant agreed to this.
[8] On August 27, 1997, the Refugee Division sent the applicant and his solicitor a notice to appear for a hearing of the claim, which was set down for November 19, 1997 at 8:30 a.m.
[9] On November 19, 1997, the applicant reported for his hearing, but his solicitor, Ms. Blain, was again absent. Once again, at 9:30 a.m., Ms. Blain sent the Refugee Division a notice that she was ill and could not be present.
[10] The tribunal then warned the applicant that it wished to proceed as scheduled and that, to this effect, the Refugee Claim Officer was going to ask some questions.
[11] The Refugee Division offered the applicant the possibility of sending some additional documentation after the hearing.
[12] The applicant refused to proceed and was warned of what was at stake and the risks he incurred in refusing to present his application.
[13] The Refugee Division even states that the applicant was "[Translation ] begged" to proceed because the Act requires that they proceed expeditiously.
[14] The applicant again stated that he could not proceed, that he had retained counsel, and that she could not be present.
[15] On November 19, 1997, the Refugee Division initiated abandonment proceedings. Accordingly, it informed the applicant by a written notice that a hearing would be held on December 5, 1997 at 12:45 p.m. to allow him to explain why it should not declare that his claim had been abandoned pursuant to paragraph 69.1(6)(c) of the Act, given that he had failed to prosecute his claim at the hearing of November 19, 1997. The notice to appear was also sent to the applicant"s solicitor.
[16] On December 5, 1997, the applicant and his counsel, Ms. Blain, were present at the hearing in relation to the abandonment of their claim.
[17] It appears that the applicant wanted to proceed with the hearing of his claim, but he was informed that he could not so proceed since the hearing was being held for the purpose of enabling him to explain why the Refugee Division should not declare that his claim had been abandoned.
[18] The Refugee Division ruled that the explanations provided added nothing to what it already knew and that in this case they were insufficient.
[19] The Division held that the applicant was in default in the prosecution of his claim and declared that the claim had been abandoned.
[20] The applicant later filed an application for judicial review, now before this Court, which challenges this ruling on its merits and essentially alleges that the Refugee Division failed to observe the principles of natural justice and procedural fairness by refusing to hear the claim and denying the applicant the right to be represented by counsel.
[21] The hearing of the application for judicial review was set down for Wednesday, October 21, 1998 at 11:30 a.m., for a period not to exceed two hours, and was held at the Federal Court of Canada, 30 McGill Street, Montréal, Quebec, pursuant to the express request of the applicant"s solicitor.
[22] On this date and at the scheduled time, neither the applicant nor his counsel were present at the hearing.
[23] The judge asked the bailiff to check and to call three times for the applicant or his counsel to report.
[24] The judge also asked the Registrar of the Federal Court, Ms. Hélène Désorcy, to contact the office of the applicant"s solicitor in an effort to secure her presence.
[25] The Registrar informed the Court that there was no reply and she had to leave a message on the answering machine of the applicant"s solicitor.
[26] Counsel for the respondent, the Department of Citizenship and Immigration, stated she was prepared to proceed, and the Court proceeded to hear the case.
[27] The applicant alleges in particular, in his written pleadings, that he was unable to proceed with the hearing on November 29, 1997 because the lawyer he had chosen to represent him was absent on account of illness and that he was entitled to be represented by counsel at the hearing of his claim. He alleges that he has not been negligent and that no fault or liability can be attributed to him.
[28] The applicant alleges, therefore, that the tribunal should have granted him a second adjournment given the absence of his solicitor, even though the case had been set down peremptorily with his voluntary agreement and his very clear understanding of the meaning of the peremptory postponement granted on the preceding June 19.
[29] It is clear that an administrative tribunal such as the Refugee Division has the authority to grant or refuse any request for an adjournment.
[30] Counsel for the respondent noted what Sopinka J. had to say about the discretion of administrative tribunals in such matters, in Prassad v. Canada (M.E.I.):1
We are dealing here with the powers of an administrative tribunal in relation to its procedures. As a general rule, these tribunals are considered to be masters in their own house. In the absence of specific rules laid down by statute or regulation, they control their own procedures subject to the proviso that they comply with the rules of fairness and, where they exercise judicial or quasi-judicial functions, the rules of natural justice. Adjournment of their proceedings is very much in their discretion. (pp. 568 and 569)
[31] Respondent"s counsel rightly argues that the Refugee Division has a duty to act expeditiously and to hear the claims referred to it as soon as is practicable, pursuant to subsections 68(2) and 69.1(1) of the Act. Indeed, citizens tend to criticize administrative agencies for their sluggishness in case management.
[32] Respondent"s counsel also argues that a person"s right to be represented by a lawyer or counsellor of his choice at the hearing of his claim does not imply that he can demand adjournments if his representative is not available or ready to proceed, referring in this regard to a number of cases.2
[33] In this connection, I will adopt the comments by Jackett C.J. in Pierre v. M.E.I., at page 851:
In considering a complaint that a tribunal has refused to grant an adjournment, it must be remembered that, in the absence of some specific rule governing the manner in which the particular tribunal should exercise its discretion to grant an adjournment, the question as to whether an adjournment should be granted is a discretionary matter for the tribunal itself and that a supervisory tribunal has no jurisdiction to review the tribunal's decision to refuse an adjournment unless the refusal results in the decision made by the tribunal at the termination of the hearing being voidable as having been made without complying with the requirements of natural justice.1
In my view therefore, the question that this Court must answer in considering this first ground is whether, by reason of the refusal of an adjournment, the deportation order under attack was made without giving the applicant a reasonable opportunity of answering what was alleged against him. This is a question that must be decided by this Court on the facts of this particular case.
1 Compare section 9 of the Immigration Inquiries Regulations, SOR/67-621, which reads:
| 9. The presiding officer may, from time to time, adjourn the inquiry |
| (a) at the request of the person in respect of whom the |
| inquiry is being held, or his counsel; or |
| (b) for any other reason the presiding officer deems sufficient. |
[34] Similarly, Kelly D.J., at page 875 of the Pierre judgment, states:
As 1 understand the argument advanced on behalf of the applicant, the refusal of an adjournment was equated to a denial to the applicant of his right to be represented by the counsel of his choice.
Despite the influence exerted on Canadian jurisprudence by the Miranda decision, when a person's rights may be affected by a decision of an officer or a tribunal, a failure of the person to be represented by counsel before that officer or tribunal does not, of itself, constitute grounds for attacking a decision.
[35] In Siloch v. M.E.I.,3 an administrative tribunal refused to adjourn an inquiry when the representative of a non-resident, an immigration consultant, failed to appear for a scheduled hearing, apparently because he had been involved in an automobile accident. Décary J.A. adopted the principle laid down by Sopinka J. in Prassad v. M.E.I., supra, and went on to state, at page 78:
It is also well settled that in exercising his discretion to grant an adjournment under s. 35(1) of the Regulations, the adjudicator must direct his attention to factors such as:
(a) whether the applicant has done everything in her power to be represented by counsel;
(b) the number of previous adjournments granted;
(c) the length of time for which the adjournment is being sought;
(d) the effect on the immigration system;
(e) would the adjournment needlessly delay, impede or paralyse the conduct of the inquiry;
(f) the fault or blame to be placed on the applicant for not being ready;
(g) were any previous adjournments granted on a peremptory basis;
(h) any other relevant factors.
[36] Respondent"s counsel drew my attention to Jouzichin v. M.C.I. ,4 in which Reed J. states, at page 2:
But, the general rule is that you do not separate counsel"s conduct from the client. Counsel is acting as agent for the client and as harsh as it may be the client must bear the consequences of having hired poor counsel.
[37] It should be noted that in the sequence of events the applicant"s claim had been referred to the Refugee Division in January 1995, almost four years ago, and that following the abandonment of his claim in November 1995, he was given a second chance.
[38] It ought to be mentioned that on October 12, 1995, the applicant and his solicitor were notified that a hearing would be held on October 19, 1995. Since the applicant did not appear on that date, the Refugee Division set in motion the abandonment process and a date was set to allow the applicant and his solicitor to come and explain themselves. However, they failed to appear this time, either. It was not until November 17, 1995 that the applicant made a request that his claim be reopened, which was approved on April 25, 1996.
[39] The record also indicates that on December 12, 1997, a motion to reopen the hearing under Rule 28 of the Convention Refugee Determination Division Rules was tabled before two new Division members. They dismissed the motion on February 18, 1998.
[40] The applicant has already been allowed an initial postponement of the hearing of his claim, on June 19, 1997, owing to the absence of his counsel. From that time on, the applicant has known that the case was to proceed peremptorily, and not only did he understand the meaning of this peremptory postponement, but he agreed to it, judging from the transcript of the shorthand notes taken at the hearing that determined the postponement of hearing, on June 19, 1997.
[41] It was on November 19, 1997, when the applicant was again alone without his counsel before the Refugee Division, that he refused to adhere to the undertaking he had made in June and proceed with the hearing of his claim, knowing the consequences that could ensue.
[42] The applicant had a further opportunity, more than two weeks later, to reappear before the Refugee Division in regard to the abandonment proceeding that had been set in motion, in order to argue, at that point, why the Refugee Division should reconsider its decision. His request was denied.
[43] From a review of the record, it seems clear that in the circumstances the Refugee Division"s decision to declare an abandonment of the claim owing to the applicant"s default in the prosecution of his claims was not unreasonable, and was consistent with the rules of national justice and procedural fairness.
[44] In regard to the December 5, 1997 hearing, the applicant and his solicitor, Ms. Blain, were called to a hearing on the abandonment of the claim in order to explain why the Refugee Division should not declare the abandonment of the applicant"s claim; it was therefore not unreasonable for the Refugee Division to refuse to hear the claim at that time.
[45] In this regard, respondent"s counsel refers to Ressam v. Canada ,5 which cites with approval Ghassan v. M.E.I.:6
Counsel for the applicant considered that the Refugee Division had misunderstood the meaning and scope of s. 69.1(6) of the Act. He argued that according to the very essence of this provision the panel should ascertain whether the person concerned was prepared to proceed with his or her claim. He contended that so long as the person concerned is present and willing to proceed and the record is in order, it is simply not possible to conclude there has been abandonment.
I do not share this view. Accepting such reasoning would nullify the effect of the provisions of s. 46.03(2) of the Act, according to which a person whose claim is referred to the Refugee Division must provide the Division with such information as is required by the Rules in the manner and within the period prescribed, namely within twenty-eight days. When pursuant to s. 69.1(6)(b) of the Act the Refugee Division gives the person concerned an opportunity to be heard, it is the very purpose of that abandonment hearing to allow the person concerned to explain the reasons why he believes he did not abandon the claim. It is only when the Refugee Division has allowed the claimant to explain his reasons and concluded that they ware valid that it may proceed to hear the claim. This can be seen from reading s. 32 of the Convention Refugee Determination Division Rules. [Emphasis added]
[46] In his final submission to the Court, the respondent"s counsel notes the absence of both the applicant and his counsel at the hearing on the application for judicial review, on October 21, 1998. I find this absence completely inexplicable. Furthermore, although this Court was sitting for a good part of the week in Montréal both before and after this hearing, the applicant"s counsel apparently did not even deign to return the Registrar"s call in order to explain the reasons for her absence from the hearing on October 21, 1998.
[47] At the very end of the hearing, I indicated my annoyance to the respondent"s counsel and again inquired as to whether there had been any communication between the two counsel that might prompt me to understand the absence of the applicant"s counsel from this hearing, and the respondent"s representative told me she had had no contact with her colleague since the filing of the motion.
[48] As to whether I should contemplate the payment of costs, in view of the circumstances, the respondent"s counsel said she had no comment to make in this regard.
[49] Having considered the matter, I have come to the conclusion that a notice should be issued under Rule 404(2) of the Federal Court Rules, 1998 requiring Ms. Marie-José Blain to appear in Court, either personally or by way of written submissions, to explain to me why I should not issue an order directing her to pay costs in the amount of $1,000 with reference to her indescribable conduct in this case.
[50] The notice shall state that she is to reply, in writing or in person at her option, and that this reply shall be prepared, if by way of written submission, on or before November 20, 1998 at 9:30 a.m., in the Federal Court of Canada, 30 McGill Street, Montréal, Quebec, and if in person by appearing in the Federal Court of Canada, 90 Sparks Street, 7th Floor, Ottawa, Ontario, at 9:30 a.m. on November 20, 1998.
[51] Finally, respondent"s counsel did not request any certification as to a question and thus no question will be certified.
[52] Wherefore, the Court DISMISSES this application for judicial review and ORDERS the issuance of a notice under Rule 404(2) directing Ms. Marie-José Blain, the applicant"s counsel, to make representations either by written representations, which shall be served and filed no later than November 20, 1998 in the Federal Court of Canada, 30 McGill Street, Montréal, Quebec or by appearing in person before the Court at 9:30 a.m. on November 20, 1998, in the Federal Court of Canada, 90 Sparks Street, 7th Floor, Ottawa, Ontario, to explain why she should not be required to personally pay the costs determined in the amount of $1,000, as a result of her conduct in failing to appear without valid reason to represent her client, the applicant in this proceeding, on Wednesday, October 21, 1998, at 11:30 a.m., in the Federal Court of Canada, 30 McGill Street, Montréal, Quebec.
OTTAWA, ONTARIO
OCTOBER 30, 1998
Certified true translation
Bernard Olivier
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE: DOUES ABDELHAR V. THE MINISTER OF |
| CITIZENSHIP AND IMMIGRATION |
| PLACE OF HEARING: MONTRÉAL, QUEBEC |
| DATE OF HEARING: OCTOBER 21, 1998 |
REASONS FOR JUDGMENT OF BLAIS J.
APPEARANCES:
| NO COUNSEL FOR THE APPLICANT |
| CHRISTINE BERNARD FOR THE RESPONDENT |
SOLICITORS OF RECORD:
| MARIE-JOSÉ BLAIN FOR THE APPLICANT |
| MORRIS ROSENBERG FOR THE RESPONDENT |
Deputy Attorney General
of Canada
__________________
1 [1989] 1 S.C.R. 560.
2 Pierre v. M.E.I., [1978] 2 F.C. 849 (F.C.A.); Linartez v. M.C.I., IMM-2539-94 (March 31, 1995 (Nadon J.), citing with approval R. v. Taylor (1980), W.C.B. 244 (Ont. H.C.J.); Pilnitz v. M.C.I., IMM-1205-96, March 7, 1997 (Tremblay-Lamer J.).
3 (1993), 151 N.R. 76 (F.C.A.).
4 IMM-1686-94, December 6, 1994 (Reed J.).
5 (1996), 110 F.T.R. 50 (Pinard J.).
6 IMM-2843-93, June 22, 1994 (Denault J.).
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