Docket: IMM-12723-12
Citation:
2014 FC 453
Ottawa, Ontario, May 12, 2014
PRESENT: The
Honourable Mr. Justice Roy
|
BETWEEN:
|
|
MILAN CIPAK, KVETA KUKUCKOVA, NICOLE HELENA CIPAK AND JAKUB
LADISLAV CIPAK
|
|
Applicants
|
|
and
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
This is an application for judicial review of a
decision of the Refugee Protection Division (RPD) released on November 20,
2012. The application is made pursuant to section 72 of the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA].
[2]
The dispositive issue in this case is whether or
not there exists a reasonable apprehension of bias on the part of the Panel.
The respondent has argued that the evidence is overwhelming that state
protection is adequate and the protection under sections 96 and 97 of the IRPA
should not be granted. However, before one reaches the actual merits of the
case, it must be determined if the process followed meets the requirement of
procedural fairness. If the process was defective, the matter will have to be
sent back to a different panel for a new determination. I have come to the
conclusion that, in the peculiar circumstances of this case, there is a
reasonable apprehension of bias.
I.
Facts
[3]
Milan Cipak is a citizen of the Slovak Republic. His spouse, Kveta Kukuckova, is a citizen of the Czech Republic. They met in the United States and their children were born there.
[4]
In September 2004, they moved back to the Slovak Republic. They claim that they experienced discrimination and physical violence
because they are an inter-ethnic couple. They also alleged being the victims of
extortion, as the owners and operators of a grocery store.
[5]
They sought the protection of sections 96 and 97
of the IRPA on October 9, 2007. Mr Cipak received a Canadian visa in April 2007
and he arrived in Canada on August 2, 2007. Mrs Kukuckova received her Canadian
visa in August and arrived in Canada, with the couple’s children on September
21, 2007.
[6]
Given the conclusion I have reached about the
procedural fairness issue, it would not be appropriate to comment on the evidence
in this case other than to set the context in which the apprehension of bias
issue arose.
II.
Reasonable apprehension of bias
[7]
The whole matter turns on the Personal
Information Form (PIF) that was prepared with the assistance of the applicants’
original counsel. The applicants would have been advised to limit their
narrative; they would be able to supplement it at a later date they were told.
The inconsistencies or contradictions between the testimonies and the PIF were
explained by the inadequacy of the translation and to some extent, the advice
that was given to the applicants.
[8]
Because of their lack of proficiency in English,
their narrative had to be translated. The translation was originally presented
as having been done by a third party, a relative of the claimants. It seems
that this person was in fact less than capable to provide a translation. It
emerged that the translation would have been made by the applicants’ former
counsel who is fluent in Slovak. The applicants were thus trying to explain why
their PIF contained omissions, inconsistencies, contradictions. In other words,
they tried to address credibility issues through an explanation involving their
counsel acting as an interpreter, but with the certificate guaranteeing the
quality of the translation signed by a third party.
[9]
The panel chose to delve into the issue. Over an
issue like credibility, the panel spent months seeking to get to the bottom of
the issue.
[10]
New counsel was retained by the applicants in
June 2009. Hearings were scheduled and postponed four times before this panel
was finally seized of the case on June 4, 2010. On that day, credibility was
identified as an issue. There were hearings on August 17, 2010, December 20,
2010, March 21, 2011, and April 16, 2012.
[11]
It came to light that the former counsel was
counsel to the relative, who was presented as the interpreter in this case, in
his own refugee proceedings in Canada. The panel inquired of the applicants why
a complaint had not been made to the Law Society against counsel. It appears
that the panel showed a significant interest in having the former counsel
testify at the hearing in order to clarify the translation issue.
[12]
The suggestion made by counsel for the
applicants to call before the RPD the person presented as being the translator
was rejected by letter dated September 17, 2010. Instead, counsel was invited
to write to the former counsel to provide an opportunity to respond, having set
out the allegations that had transpired. The former counsel responded on
October 19, 2010 that he is prevented from commenting on the allegations by the
Rules of Professional Conduct to which he is subjected.
[13]
In a letter dated October 28, 2010, the panel
asserted that due to the fact that the manner in which the PIF had been
completed had already been discussed, the solicitor-client privilege did not
apply anymore. Accordingly, the former counsel was not prohibited from
providing evidence.
[14]
In the alternative, the RPD suggested that the
applicants may consider waiving the privilege. That incitation was made again
at the hearing of March 21, 2011. Counsel for the applicants had indicated in
his letter of November 18, 2010 to the RPD the reluctance of his clients, the
applicants, to waive the privilege, but felt under pressure to do so in view of
the insistence of the panel.
[15]
Indeed, the RPD had not left the matter
standing. In a letter dated December 1, 2010, the panel ordered former counsel “to disclose whatever information is necessary to answer the
specific allegations”. The deadline was extended and former counsel
responded on June 26, 2011 by refusing to comply with the order; authorities
were offered by former counsel in support of the refusal to comply.
[16]
The matter escalated some more. On November 16,
2011, the RPD summoned former counsel to appear before it on January 26, 2012.
Counsel was summoned:
(1) to give evidence relevant to the
claim, and
(2) to bring with you any document that you have under your
control.
[17]
The January 26, 2014 hearing was adjourned to
April 16, 2012. It is at that point that counsel for the applicants raised the
apprehension of bias issue. The RPD rejected the motion on August 16, 2012.
III.
The RPD decision
[18]
The reasons for dismissing the reasonable
apprehension of bias argument were delivered on November 20, 2012, together
with the reasons for dismissing the rest of the claim under sections 96 and 97
of the IRPA.
[19]
The RPD reasoned that a serious allegation had
been made concerning “a member in good standing of a
regulated profession”, with significant impacts on the lawyer, the
profession and society. Because of the credibility concerns about the
applicants that would be left inadequately addressed, the panel was seeking an
explanation.
[20]
In the view of the panel, “[a]llowing
an opportunity for explanation cannot be seen as bias. I was simply giving the
claimants an opportunity to establish their allegations.”
[21]
As for the method chosen, in the end, to compel
the attendance of former counsel, the RPD wrote at paragraph 24:
The Board may compel any witness, particularly
when they would otherwise be unwilling. I summonsed [sic] former counsel
as a method to compel him to provide his respond [sic]. In that response
former counsel could have either confirmed or denied any of the allegations. As
such, this cannot be seen as bias…
[22]
Finally, the RPD seems to dismiss the impression
the claimants may have that they would not be believed without the evidence of
their former counsel by noting that “former counsel was
open to providing his response which would have supported or opposed the
claimants’ account.” (para 25).
IV.
Analysis
[23]
It is not disputed that the standard of review
for alleged infringements of the duty of fairness is correctness (Sketchley
v Canada (Attorney General), 2005 FCA 404; [2006] 3 FCR 392 [Sketchley]).
No deference is owed the decision-maker. As the Court of Appeal put it at
paragraph 54 of Sketchley, “If the duty of
fairness is breached in the process of decision making, the decision in
question must be set aside.”
[24]
In this case, the issue is not so much whether
the decision-maker was biased against the applicants, but rather whether there
is an appearance that there was a lack of impartiality. The inquiry does not
focus on the subjective state of mind of the decision-maker; it focuses on the
existence of a reasonable apprehension of bias, of an appearance of unfairness.
The value that needs to be protected is the public confidence in the integrity
of the decision-making process. Lord Denning MR stated in Metropolitan
Properties Co (FGC) Ltd v Lannon, [1969] 1 QB 577:
The Court will not inquire whether he did, in
fact, favour one side unfairly. Suffice it that reasonable people might think
he did. The reason is plain enough. Justice must be rooted in confidence: and
confidence is destroyed when right-minded people go away thinking: “The Judge was biased.”
(Page 599)
[25]
In those circumstances, it will not matter that
the decision-maker is convinced that he is not biased against one party or another
(Grand Rapids First Nation v Nasikapow (2000), 197 FTR 184).
[26]
In Canada, the test for determining reasonable
apprehension of bias was stated in Committee for Justice and Liberty et al v
National Energy Board et al, [1978] 1 S.C.R. 369:
[T]he apprehension of bias must be a reasonable
one, held by reasonable and right minded persons, applying themselves to the
question and obtaining thereon the required information. In the words of the
Court of Appeal, that test is ‘what would an informed person, viewing the
matter realistically and practically--and having thought the matter
through--conclude’.
…
I can see no real difference between the
expressions found in the decided cases, be they ‘reasonable apprehension of
bias’, ‘reasonable suspicion of bias’, or ‘real likelihood of bias’. The
grounds for this apprehension must, however, be substantial and I entirely
agree with the Federal Court of Appeal which refused to accept the suggestion
that the test be related to the ‘very sensitive or scrupulous conscience’.
(Pages 394-395)
[27]
It has been said that the duty of fairness will
vary with the different circumstances that present themselves. Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 [Baker]
stands for the proposition that the duty of procedural fairness is flexible and
variable. Similarly, Baker finds that procedural fairness implies an
absence of a reasonable apprehension of bias.
[28]
Several factors must be weighed in making a
determination as to the context of a duty of fairness in a particular case. The
list, although not exhaustive, is illustrative of issues that must be
considered:
1)
the nature of the decision and the process
followed in making it;
2)
the statutory scheme;
3)
the importance of the decision to the persons
affected;
4)
the legitimate expectations of the persons
affected;
5)
the choices of procedure made by the
decision-maker.
[29]
Although the standards for reasonable
apprehension of bias may vary (Newfoundland Telephone Co v Newfoundland
(Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623), it seems
to me that the nature of the decision (refugee status or person in need of
protection) and the importance of the decision to the persons affected militate
in favour of a rather strict application of the test. The person who fears for
her safety if returned to her country of nationality has a lot at stake.
[30]
Furthermore the decisions are obviously
individualized, as opposed to general. They require a careful examination of
the very personal circumstances of the applicant. The nature of the decision is
such that it is based on facts, including an assessment of the credibility of
witnesses. On the old spectrum that was used in administrative law context,
from judicial decisions to political ones, we are clearly situated much closer
to the judicial end of the spectrum. As in Baker, these kinds of
decisions, which are critical to the well being of applicants, require a
recognition of diversity and an openness to differences between people.
[31]
In the case at bar, the RPD insisted in getting
to the bottom of an incident which, in the grand scheme of things, did not
require that kind of attention. In my view, a well-informed member of the
community would ask herself why such an issue was followed to that extent.
Indeed, the RPD suggested that the solicitor-client privilege, one of the most
sacred privileges in our law, be waived. It even summoned counsel to appear
before the RPD in spite of what appeared to be a well-placed reluctance on the
part of counsel, especially after his former clients, the applicants, declined
to waive the privilege as “strongly suggested” by
the RPD.
[32]
That insistence on the part of the RPD must be
contrasted with the issue’s importance. The RPD wanted to test the credibility
of the applicants with regards to discrepancies between the translated PIF and
testimonies. Obviously, this is just one element that could have been used to
assess credibility; indeed there may have been room to draw some negative
inferences, if appropriate, from the whole episode.
[33]
The well-informed person, acting reasonably and
viewing the matter realistically and practically, would question such
insistence: what was the decision-maker trying to achieve? There may be a
perception of bias in that the decision-maker is pursuing aggressively what is
presented as a credibility issue, beyond what this incident was worth. I am
concerned that such behaviour creates a perception that there was some bias, in
the nature of something resembling a vendetta, against the applicants or their
chosen counsel. As I have already pointed out, the issue is not whether there
was such bias in this case, but rather whether there is that perception leading
to a reasonable apprehension of bias.
[34]
The suggestion that the RPD sought to address
credibility concerns would be more plausible if the RPD had not exerted the
kind of pressure over many months on the applicants to waive the
solicitor-client privilege, thereby leaving the impression that their claim
hung in the balance. Whatever was the evidence, the perception of a
well-informed person would be that, on that sole basis, the case had been
decided against the applicants.
[35]
As a result, the Court concludes that a
reasonable apprehension of bias exists in this case. The application for
judicial review is therefore granted. The matter will have to be sent back to a
different panel for re-determination. There is no question for certification.
Email this Content