Date: 20100129
Docket: IMM-2928-09
Citation: 2010 FC 106
Ottawa, Ontario,
January 29, 2010
Present: The Honourable Mr. Justice
Harrington
BETWEEN:
HABIBA FAZIA MADOUI
Applicant
and
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Habiba Fazia Madoui is an Algerian woman who
rebelled against the idea of marrying a much older man. The marriage was
arranged by her father, who is apparently a fairly influential man and who allegedly
beat her. With her mother’s help, she left Algeria for Canada, where
she made a claim for refugee protection. This is the judicial review of the
decision of the Refugee Protection Division (RPD) of the Immigration and
Refugee Board (IRB) rejecting her claim. The RPD found Ms. Madoui not to
be credible.
ISSUES
[2]
Two arguments were raised in support of this
application for judicial review. The first is that Ms. Madoui’s counsel, who
had been retained just six days prior to the hearing and had not been in
possession of the complete file, had applied to have the hearing postponed. That
application was dismissed. The second is that, in any event, the decision is
unreasonable and should be quashed.
STANDARD OF
REVIEW
[3]
The refusal to postpone a hearing to allow counsel
to prepare is an issue of procedural fairness. No deference is owed to the RPD:
Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), 2001 SCC 41, [2001] 2 S.C.R. 281; Canadian Union of Public
Employees (C.U.P.E.) v. Ontario (Minister of Labour), 2003 SCC 29,
[2003] 1 S.C.R. 539. As for the decision to reject Ms. Madoui’s claim for
refugee protection, the standard of review is reasonableness (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190).
PROCEDURAL
FAIRNESS
[4]
Counsel for Ms. Madoui was retained just six
days prior to the date set for the hearing. That was the fourth time that the
matter had been scheduled to be heard.
[5]
Counsel, Mr. Si Ali, applied in writing to
the RPD to have the hearing postponed, noting the following ground: [translation] “. . . I do
not have a copy of the file, and, given the proximity of the hearing date
(March 25, 2009), I would like to request that the hearing be postponed to
a later date”.
[6]
His application was dismissed just prior to the
start of the hearing. The decision is simply worded as follows: [translation] “A lawyer who accepts
a case must make sure that he or she is available on the appointed date”. The
hearing took place. Mr. Si Ali cannot be faulted for not having applied to
this Court for a stay, considering the Court’s reluctance to rule on
interlocutory matters raised before the RPD: Canada (Minister of Public Safety and Emergency Preparedness) v. Kahlon, 2005 FC 1000, [2006] 3 F.C.R. 493.
[7]
The Minister defends the RPD’s decision on a different
basis from that on which the decision was actually rendered. The Minister
submits that the RPD dismissed the application because it was merely another
delaying tactic by Ms. Madoui. In fact, the applicant’s new counsel
requested an adjournment the very day he was retained. His application was
dismissed on the grounds that [translation] “a
lawyer who accepts a case must make sure that he or she is available on the
appointed date”. The Minister also maintains that, even if Mr. Si Ali had been
given more time to prepare, the outcome would have been the same.
[8]
The RPD was understandably frustrated by
Ms. Madoui’s behaviour, including her failure to keep it informed of her
changes of address. However, the first two dates were rescheduled for administrative
reasons that had nothing to do with Ms. Madoui. The third date was
rescheduled because Ms. Madoui’s counsel had withdrawn from her file, as
his fees had not been paid. That was in September 2008. In February 2009,
the hearing date was set for March 25, 2009. It was clearly mentioned that
she was to be ready to proceed.
[9]
It may very well be that the RPD refused to
postpone the hearing because Ms. Madoui resorts to delay tactics. However,
that was not the reason it gave. The RPD focussed on counsel, not Ms. Madoui.
[10]
Clearly, there are situations where lawyers have
not only the right but also a duty to accept a retainer when they are unable to
proceed on a previously set date. Suppose, for example, that Ms. Madoui’s
counsel suddenly died or was appointed to the judiciary. In such circumstances,
she would not all the same have been forced either to find a lawyer who would
feel ready without the file or to represent herself.
[11]
Rule 48 of the RPD Rules reflects the principles
of natural justice. If an application is made to change the date of a
proceeding, the RPD must consider any relevant factors, including:
|
(c) the
time the party has had to prepare for the proceeding;
. . .
(f)
whether the party has counsel;
(g) the
knowledge and experience of any counsel who represents the party;
(h) any
previous delays and the reasons for them;
(i)
whether the date and time fixed were peremptory;
(j)
whether allowing the application would unreasonably delay the proceedings or
likely cause an injustice; and
(k) the
nature and complexity of the matter to be heard.
|
c) le temps dont la partie a disposé pour se préparer;
[…]
f) si la partie est représentée;
g) dans le cas où la partie est représentée, les connaissances et
l’expérience de son conseil;
h) tout report antérieur et sa justification;
i) si la date et l’heure qui avaient été fixées étaient
péremptoires;
j) si le fait d’accueillir la demande ralentirait l’affaire de
manière déraisonnable ou causerait vraisemblablement une injustice;
k) la nature et la complexité de l’affaire.
|
[12]
In making that decision, the RPD failed to
consider all of the relevant factors. The Minister provided the Court with a
great number of judgments concluding
that a party’s right to counsel is not absolute. An application
for a postponement also requires a legitimate reason. I have reviewed many of
the authorities in Mervilus v. Canada (Minister of Citizenship and Immigration), 2004 FC 1206. More recently, Justice Russell analyzed them in Khan
v. Canada
(Minister of Citizenship and Immigration), 2010 FC
22.
[13]
In determining whether the refusal to allow a
postponement is reviewable, the Court must consider whether the case is
complex, whether the consequences of the decision are serious, and whether the
individual has the resources—be it in terms of intellect or legal knowledge—to
properly represent his or her interests.
[14]
The Minister submits that the case was not
complex and that Mr. Si Ali did an excellent job. Moreover, if there was a
lack of procedural fairness, this deficiency was corrected when Mr. Si Ali
was given the opportunity, after the hearing, to submit additional information.
However, this opportunity was limited to information on the influence that
Ms. Madoui’s father exerted in Algeria. At the end of the hearing, the member said that, [translation] “as [Mr. Si Ali
had not had] much time to prepare for this hearing, [she would give him] a
little homework to do”, which was to find a document confirming that the father
is the director of a cultural centre.
[15]
In my opinion, the initial breach of natural
justice in this case has not been rectified. It is not a situation where, at
the next level, be it an appeal or a review, the applicant may introduce new
evidence and proceed de novo, such as in an appeal under the Veterans
Review and Appeal Board Act. See, for example, Harelkin v. University of
Regina, [1979] 2 S.C.R. 561. In a judicial review proceeding, the Court may
quash a decision, but it cannot render the decision that should have been made
at trial.
[16]
The facts in this case relate to the principles set
out in Cardinal v. Kent Institution, [1985] 2 S.C.R. 643, [1985]
S.C.J. No. 78 (QL). Justice Le Dain, writing for the Court, stated the
following at paragraph 23:
I find it necessary to affirm that the denial of a right to
a fair hearing must always render a decision invalid, whether or not it may
appear to a reviewing court that the hearing would likely have resulted in a
different decision. The right to a fair hearing must be regarded as an
independent, unqualified right which finds its essential justification in the
sense of procedural justice which any person affected by an administrative
decision is entitled to have. It is not for a court to deny that right and
sense of justice on the basis of speculation as to what the result might have
been had there been a hearing.
[17]
I am not prepared to speculate as to what the
outcome might have been had Mr. Si Ali been given enough time to prepare. Mobil
Oil Canada Ltd v. Canada‑Newfoundland Offshore Petroleum Board,
[1994] 1 S.C.R. 202, establishes the principle that, in some cases, a
breach of procedural fairness may be disregarded because there could not have
been a different outcome. However, in that case, a different result would have
been impossible under the applicable legislation. Here, the decision is based
on findings of fact: Ms. Madoui’s lack of credibility. I am not prepared
to conclude that there is so little need for lawyers in immigration hearings
that the outcome could not have been any different had Mr. Si Ali been
given more time to prepare.
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