Date: 20040317
Docket: IMM-2965-03
Citation: 2004 FC 413
BETWEEN:
DVORIANOVA, OLGA NIKOLAEVNA (NIKOLAEVA)
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PHELAN J.
[1] The Applicant, Olga Nikolaevora Dvorianova ("Dvorianova") claims that her immigration consultant's negligence caused her refugee application to be found to be abandoned.
Background
[2] Dvorianova is a Russian citizen who claims to face political persecution in that country. She seeks judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board ("IRB" or "panel") dated April 9, 2003, determining that her refugee claim was abandoned.
[3] Her original refugee hearing was postponed in May 2002 due to her back pains. A second hearing in September 2002 was postponed for administrative reasons. Her third hearing was scheduled for November 27, 2002.
[4] According to Dvorianova's affidavit filed in this judicial review, she had retained an immigration consultant, Alan S. Franklin ("Franklin") to handle her proceedings.
[5] On the day before the November 27th hearing, she claims that, although she was prepared to attend and had no reason not to attend, Franklin advised her that he would seek another postponement. The reason Franklin wanted the postponement was that he wanted to make amendments to her "narrative".
[6] She further alleges that Franklin advised her not to attend the hearing and that he would do whatever it took to secure the postponement.
[7] At the hearing on November 27, 2002, Franklin advised the panel that Dvorianova was in pain that day, produced a letter claiming that she was scheduled for a CT scan two months later. Franklin requested a postponement for these reasons.
[8] The panel granted the postponement and scheduled a hearing on April 8, 2003 to allow her to show cause why her claim to refugee protection should not be abandoned. Franklin was also informed that "comprehensive medical information would be required to indicate that the claimant was unable to attend the hearing on the day of November 27, 2002".
[9] Dvorianova alleges that Franklin failed to tell her about the nature of the medical evidence which she would have to secure and present at the April 8, 2003 hearing. This is the crux of her allegation of negligence and incompetence.
[10] At the April 8, 2003 hearing at which both Franklin and Dvorianova were present, the only medical evidence presented was a letter from the Pain Management Program of the Department of Anaesthesia, Sunnybrook Campus, University of Toronto, indicating that she had an appointment scheduled for March 25th (no year indicated). The panel concluded that the letter must be referring to 2003.
[11] The transcript of that hearing shows that both the panel and Franklin attempted to secure a further and better indication of her medical condition on November 27, 2003. Her response was that the appointment letter for March 25th was, she believed, sufficient and that further proof of her illness could easily be obtained.
[12] In argument, Franklin attempted to deal with the absence of medical evidence as of November 27, 2003 on the basis that on that date she was in pain and no doctor could either confirm or deny her claim to be in pain. At this Court, her counsel claimed that this argument was another sign of Franklin's incompetence.
[13] The panel put little weight on the appointment letter and noted the absence of the required comprehensive medical evidence as of November 27, 2003. The panel held that Dvorianova had failed to show cause why her claim to refugee status should not be abandoned and therefore determined it abandoned pursuant to subsection 168(1) of the Immigration and Refugee Protection Act.
[14] In her judicial review application, Dvorianova filed an affidavit claiming amongst other matters:
(a) that Franklin had wanted the November 27, 2002 postponement, although she was able to attend;
(b) that on his advice, she did not attend;
(c) that Franklin reported that he had secured a postponement on the grounds that she was too ill to attend; and
(d) that Franklin did not tell her that she would have to produce medical evidence confirming that she was so ill on November 27th that she could not attend.
[15] Although allegations against Franklin were made in the affidavit, in the memoranda (there were two memorandums filed) and in oral argument, no evidence was tendered as to what medical evidence could have been presented had Dvorianova been aware of what she was required to produce.
Issue
[16] The issue in this judicial review is whether the Applicant has established that her immigration consultant's conduct was of such incompetence or negligence as to prejudice her right to a fair hearing.
Analysis
[17] The fact that Dvorianova used an immigration consultant rather than a lawyer is irrelevant to this Court. She had a right to do so but she also accepts the consequences of doing so. An applicant remains bound by the consultant's conduct, as would be the case if she had retained counsel (see Cove v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 482, 2001 FCT 266).
[18] The incompetence of counsel, or other representative, may be so significant that it would constitute a breach of natural justice. However, the standard of proof in these circumstances is high. It is too easy to make allegations of incompetence without proof.
[19] While this Court in Fatima v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 308 (F.C.T.D.) confirmed that incompetence may be a breach of natural justice, I do not conclude as may have been suggested in Fatima, supra that it is necessary in all cases that such incompetence must be apparent to the decision-maker. It would be both unfair and unworkable to require that an administrative tribunal such as the IRB inquire into the competence of representatives who appear before it as part of the hearing process.
[20] The Supreme Court of Canada established the criteria for the incompetence of counsel being sufficient to deny a fair hearing in R. v. B. (G.D.) [2001] 184 D.L.R. (4th) 577.
[21] The Supreme Court held that the claimant must establish the acts or omissions of counsel that are alleged are not the result of professional judgment. The claimant must also establish that there was a miscarriage of justice.
[22] This Court has established in Shirwa v. Canada (Minister of Employment and Immigration) [1994] 2 F.C. 51 F.C.T.D. that the evidence of incompetence must be clear and convincing.
[23] While the only evidence before the Court on this allegation of incompetence is that of the Applicant, I find that there are sufficient internal inconsistencies as to cast doubt as to the test of "clear and convincing".
[24] On the one hand, Dvorianova claims that she was able to attend the November 27th hearing and on the other, she alleges that Franklin was incompetent or negligent in not advising her that she needed to present medical evidence on April 8, 2003 that she was unable to attend the November 27th hearing due to illness. She cannot have it both ways.
[25] If she was able to attend on November 27, 2002, the type of medical evidence required would not exist.
[26] If Franklin had not told her that medical evidence was required for the April 8th hearing, there would have been no reason for her to bring any medical evidence much less a letter for an appointment on March 23rd.
[27] I cannot find that there is clear and convincing evidence of incompetence or negligence.
[28] Related to the above is also the absence of evidence of prejudice. If Dvorianova was so ill on November 27th, she would not have sworn to the contrary. Moreover, in this judicial review it would be reasonable to expect the Applicant to have tendered evidence of her illness on that day as a clear indication that she had suffered prejudice.
[29] Dvorianova has not taken some of the steps one would expect a person to take in these circumstances. She did not ask for an adjournment of the April 8th hearing, nor did she indicate what type of medical evidence existed. She has not, so I was advised by counsel, taken any legal proceedings against Franklin on the basis of incompetence.
[30] Dvorianova claims in her affidavit that she was prepared and able to attend the November 27th hearing. When she was advised by Franklin that he had secured a postponement on the grounds of her illness that day, she took no steps to recant her representative's submission. She was content to be the beneficiary of his misstatements if any.
[31] I cannot find clear and convincing evidence of incompetence or negligence or such evidence of prejudice.
[32] While section 12 of the Charter was raised in the Applicant's second memorandum, no arguments were advanced on this point. I do not see how it has any application in this instance.
[33] The Applicant's counsel contends that there is no certifiable question. The Respondent's counsel indicated that he might make submissions on a question if it was decided on some legal point. Given that I am prepared to issue an order dismissing this application, the Respondent may have no further interest in a certified question.
[34] However, as I indicated to both counsel that I would give them time to reflect on these reasons, each party will have four (4) days to make submissions as to a certified question and three (3) days to respond to the other's submissions.
[35] An order dismissing this application for judicial review will issue upon expiry of those time limits.
"Michael L. Phelan"
J.F.C.
Toronto, Ontario
March 17, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2965-03
STYLE OF CAUSE: DVORIANOVA, OLGA NIKOLAEVNA (NIKOLAEVA)
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 26, 2004
REASONS FOR ORDER: PHELAN J.
DATED: MARCH 17, 2004
APPEARANCES:
Mr. Peter Woloshyn
FOR THE APPLICANT
Mr. Martin Anderson
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Gilbert & Yallen
Toronto, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR THE RESPONDENT
FEDERAL COURT
TRIAL DIVISION
Date: 20040317
Docket: IMM-2965-03
BETWEEN:
DVORIANOVA, OLGA NIKOLAEVNA (NIKOLAEVA)
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
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