Date: 20060327
Dockets: A-419-04
A-420-04
Citation: 2006
FCA 124
CORAM: DÉCARY
J.A.
EVANS
J.A.
SHARLOW
J.A.
BETWEEN:
A-419-04
KOZAK
GEZA, CSEPREGI ATTILA
KOZAK
GEZA (minor) and CSEPREGI SZILVIA
Appellants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
A-420-04
SMAJDA SANDOR, SMAJDA ZSOLT,
SMAJDA SANDOR, GYULAVICS TIMEA,
SMAJDA CLAUDIA and SMAJDA JOZEF
Appellants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
EVANS J.A.
A. INTRODUCTION
[1]
Administrative
agencies are often required to be procedurally innovative in order to handle a
heavy case load effectively and to make the most efficient use of scarce
resources. They are also required to observe the duty of fairness. The central
issue in this case is whether the Immigration and Refugee Board breached that
duty by creating a reasonable apprehension of bias in the way that it established
a “lead case” format for determining the appellants’ refugee claims, and by not
separating the functions of management and adjudication.
[2]
The
appellants are Hungarian citizens who claim refugee status in Canada. They say that
they have a well-founded fear of persecution in Hungary because of
their Roma ethnicity. In particular, the appellants allege that they have been
subject to persecution by gangs of racist skinheads, from whom state
authorities, including the police, are unable or unwilling to protect them.
[3]
After
conducting a hearing spread over fourteen days in October and November 1998
under the former Immigration Act, R.S.C. 1985, c. I-2, the Convention
Refugee Determination Division (as it then was) of the Immigration and Refugee
Board rejected the appellants' claims. The Board found that the appellants had failed
to prove that they had a well-founded fear of persecution in Hungary and that
state authorities would not, or could not, provide them adequate protection.
[4]
The
Board relied on common evidence of contemporary country conditions in Hungary, but heard
separate evidence relating to the particular incidents on which individual
appellants relied. The Board preferred the written and expert oral testimony provided
on behalf of the Minister on the situation facing Roma in Hungary, and on the
availability of protection by the police and other state authorities. It found
that the appellants exaggerated the seriousness of the problems that they had
faced, which amounted only to discrimination, not persecution.
[5]
The
appellants applied to the Federal Court for leave to make applications for
judicial review to set aside the decisions, alleging that the Board’s process
was unauthorized and unfair. They also argued that, in finding that adequate state
protection would not be available to them in Hungary, the Board ignored
important evidence supporting their claims, and thus committed reviewable error.
The leave applications were granted.
[6]
However,
their applications for judicial review were dismissed: although the family name
of the principal claimant in one of the appeals is Kozak, the decision is
reported as Geza v. Canada (Minister of
Citizenship and Immigration), [2005] 3 F.C. R. 3, 2004 FC 1039. The
Applications Judge certified the following question under paragraph 74(d)
of the Immigration and Refugee Protection Act, S.C. 2000, c. 27
(“IRPA”):
“Did the IRB have
jurisdiction to conduct a “lead case” under the Immigration Act?”
[7]
In
a document entitled, “Lead Case Backgrounder”, the Board stated that the
purpose of a “lead case” is to identify a refugee claim in which to create a full
evidential record on which the hearing panel could make informed findings of
fact and provide a complete analysis of the relevant legal issues.
[8]
While
not binding on other panels of the Board, the factual findings and legal
conclusions in the lead case were said by the Board to be intended to provide
guidance to future panels hearing similar cases. The lead case would thus
promote consistent, informed, efficient, and expeditious decision-making. The
appellants’ cases were the first and, to date, only, “lead case” organized and
heard by the Board.
[9]
A
“lead case” is different in at least two respects from a “jurisprudential guide”,
another technique used by the Board to enhance the quality and consistency of
decisions. A Board decision is identified as a jurisprudential guide after
it has been rendered, while a “lead case” is planned and organized before
the case is heard. In addition, a jurisprudential guide is normally intended to
be persuasive on questions of law, and mixed law and fact. In contrast, it was
intended that lead cases would also establish persuasive findings of fact on
country conditions. See further, Policy on the Use of Jurisprudential Guides,
Policy no. 2003-01 (Ottawa: Immigration and Refugee Board of Canada, March
21, 2003).
[10]
Counsel
for the appellants says that, even if the Board had the legal authority in
principle to adopt a lead case strategy in the interests of consistency,
quality and efficiency in decision-making (which he does not admit), the circumstances
surrounding the Board’s organization and conduct of the hearings of these lead
cases gave rise to a reasonable apprehension of bias and of a lack of
independence in the decision-makers. In particular, he argues, a reasonable
person would conclude that the Board’s lead case strategy was designed to
reduce the percentage of successful refugee claims by Hungarian Roma and to
deter potential claimants from coming to Canada, thus precluding an unbiased
adjudication of the appellants’ claims.
[11]
The
appellants were heard together before both the Board, which provided separate reasons
for dismissing their refugee claims, and the Applications Judge. We also heard
the appeals in Court File No. A-419-04 (Geza) and Court File No.
A-420-04 (Smajda) at the same time, since they raise many of the same
legal and factual issues. These reasons apply to both appeals, and a copy will
be inserted in each file.
B. FACTUAL
BACKGROUND
[12]
In
this appeal, most of the primary facts about the origins of the lead cases and
the consequent planning process, the hearing itself, and certain post-hearing
events, are not seriously disputed. Nor is the applicable legal test of
impartiality contested. The dispute in this appeal is essentially about whether
the primary facts give rise to a reasonable apprehension of bias.
[13]
The
record compiled by the Board in response to the appellants’ request for its
certified record pursuant to rule 317 of the Federal Courts Rules contains
little information about the facts alleged to give rise to a reasonable
apprehension of bias. It was not an issue that the Board was asked to address
when hearing the appellants’ claims.
[14]
However,
counsel for the appellants supplemented the Board’s record with material
obtained from the Board, after the appellants had been granted leave to make an
application for judicial review. The material was obtained in response to
requests made under the Access to Information Act, R.S.C. 1985, c. A-1. Much
of it comprises e-mails among Board officials about the origins and
organization of the “lead case”. The e-mails also reveal the involvement in the
planning process of Board Member Vladimir Bubrin, the leader of the Board’s
case management team for Europe, who was also a member of the two-person
panel which heard the appellants’ refugee claims. Further information is contained
in affidavits prepared for the applications for judicial review. All the
material in the appeal book was before the Applications Judge.
(i) origins of the lead
case initiative
[15]
As
evidence of the context in which the lead case initiative was developed,
counsel referred to an e-mail, dated May 6, 1998, from Joan Steegstra, who was
then the Operations Service Manager for the European case management team. In this
e-mail to a colleague (Appeal Book, vol. 10, pp. 3128-29), Ms Steegstra follows
up on a previous conversation with the recipient about the “growing intake of
Hungarians”, and advises him that she has heard from a lawyer who had been
involved in Czech Roma claims, that “there are 15,000 (yes, fifteen thousand) Hungarian
Roma on their way to Canada.” She also says that the same lawyer asked her to
confirm a press story that the Board had already rendered 28 positive decisions
in Hungarian Roma cases in the first five months of 1998. She says that she
declined to confirm the “specifics” but said that she did tell the lawyer that
“the Hungarian intake is growing”. Mr Bubrin was on the distribution list for
this e-mail.
[16]
E-mails
dated May 7, 1998 (Appeal Book, vol. 10, p. 3140), suggest that, as of that
date, media interest in Hungary seemed not to have caused
an increase in the number of Roma refugee claimants arriving in Canada. However, one
official noted that “the figures do not look so good” and that, although there
had been no increase in April, “the numbers remain relatively high”.
[17]
These
e-mails appear to have been exchanged among a management group at the Board,
and officials of Citizenship and Immigration Canada (“CIC”). An affidavit from Robert
Orr, who was appointed Director General of CIC in 2003, describes in general
terms the contacts between CIC and the Refugee Protection Division (as it now
is) of the Board: Appeal Book, vol. 12, pp. 3358-59. He said that contacts take
place at the Headquarters level and involve Directors General and above.
Discussions focus on policy issues of mutual interest, not individual cases.
For example, CIC shares with the Board its information about trends and
anticipated increases in the volume of claimants from a particular country. The
broader implications of a particular decision may also be discussed at meetings
at the regional level. Board members do not attend any of these meetings.
[18]
In
further intra-Board e-mail exchanges on May 27, 1998 (Appeal Book, vol. 11, p. 2888),
Ms Steegstra states that “HQ is now interested in the ever-growing intake of
Hungarian cases” and reports that, since the beginning of the year, “we have
had 12 positives, but only 4 with reasons, two of which have been bench
positive reasons.” In an e-mail sent earlier that day, Ms Steegstra had said that,
since November 1997, there had been “13 positives and 2 negatives”. “HQ” appears
to refer to the Board, not CIC. Mr Bubrin was on the distribution list for
these e-mails. In an e-mail from the Deputy Chair, dated July 2, 1998, it is
reported that, since the beginning of the year, approximately 65 Hungarian
refugee claims had been decided by the Board, most of them from Roma, and that
almost all had been in favour of the claimants.
[19]
In
an e-mail addressed to Mr Bubrin on May 28, 1998 (Appeal Book, vol. 11, p.
3212), Mr Gregory James, a co-ordinating member of the Convention Refugee
Determination Division, emphasised the importance of “fully elaborated reasons”
for positive decisions in Hungarian Roma cases and expressed the view that “it
is inevitable that public scrutiny will rise to levels similar to Czech cases.”
He said that he would be recommending that a special hearing should be set up
“for a real but archetypal case”, the processing of which would be expedited. Mr
James proposed that the Minister participate at the hearing of the “lead case” and
that “good counsel” should be involved.
[20]
Mr
James noted in this e-mail that he had suggested a similar strategy to deal
with Czech Roma claims and expressed disappointment that it had not been acted
upon. He further stated that the Department (that is, CIC) is “not impressed
with our decisions and keeps making noises that they have information that we
didn’t consider”. A “full blown hearing” of a Hungarian Roma claim, with full
participation by the Minister, he opined, may cause CIC “to put up rather than
simply snipe from the sidelines.” Mr James concludes by saying that Board
members hearing subsequent claims by Hungarian Roma would not be bound by the
findings made in the lead case, “but they may find it persuasive and at least
it should serve to clear the air.”
[21]
Counsel
for the Minister said that it is clear from Mr James’ e-mail that the lead case
strategy was an initiative of the Chair and the Deputy Chair of the Board, and
did not emanate from CIC.
(ii) planning the lead
case
[22]
Ms
Steegstra was responsible for the day-to-day management of the lead cases. She
testified in her affidavit that Peter Wuebbolt was selected as the lawyer who
would represent claimants, on the ground that he had more Hungarian Roma files
before the Board than any other lawyer. It was contemplated that the lawyer selected
to represent the claimants in the lead case would be able to obtain a level of funding
from the Ontario Legal Aid Plan which would adequately reflect the hours
involved in preparing for and attending a lead case hearing, and that, once a
lawyer had been identified, the Deputy Chair should contact legal aid for this
purpose: Appeal Book, vol. 11, p. 3071.
[23]
Ms
Steegstra described the process by which the appellants’ claims were selected
as the lead case. The aim was to select “very typical claims, not particularly
complex or high profile.” As requested, Mr Wuebbolt brought into a Board
meeting all his files and, after the main part of the meeting had ended, he and
Ms Steegstra reviewed them, removing from consideration “particularly
problematic files”.
[24]
Meanwhile,
Mr Wuebbolt explained the lead case “scenario” to his clients and submitted a
short list to Ms Steegstra and Mr Bubrin. Ms Steegstra made the final
selection, “not someone involved in the hearing process.” It is clear that Mr
Wuebbolt participated actively and willingly in the lead case process.
[25]
A
Refugee Claims Officer was selected for the hearing, and the Minister of
Citizenship and Immigration was invited to participate. The Minister’s
representative at the hearing was selected by the CIC Manager in Toronto.
[26]
Refugee
claims are normally decided on the basis of written material about country
conditions available in the Board’s Documentation Centre. The most distinctive
feature of the hearing of the lead case was that expert witnesses were to be
called to testify about the situation facing Roma in Hungary, especially
regarding the availability of protection against discrimination and persecution
provided by state authorities, including the police.
[27]
Mr
Wuebbolt selected two witnesses whom he would call to testify at the hearing on
behalf of the appellants. The Minister’s representative selected four witnesses:
Dr Holtzl, a representative of the Hungarian Government; Dr Kaltenbach, an
Ombudsman for minority rights in Hungary; Mr Farkas,
president of the National Roma Minority Self-Government; and Mr Biro, a
journalist and, among other things, Chair of the Board of the European Roma
Rights Centre.
[28]
The
hearing panel originally comprised one Toronto-based Board Member, Mr Popatia,
and one from Montreal, Ms Berger. The
rationale for including a Montreal-based Member to sit on a panel to hear a
case arising in Toronto was that, to the extent that there were differing
regional perspectives on refugee claims made by Hungarian Roma, it would
increase the persuasiveness of the lead case to include on the panel Board Members
from Toronto and Montreal.
[29]
However,
in an e-mail dated September 18, 1998 (Appeal Book, vol. 11, p. 3096),
Mr Bubrin stated that he would sit on the panel in place of Mr Popatia,
who he had withdrawn for “personal reasons”. In an e-mail, dated October 26,
1998, Ms Steegstra wrote that Mr Bubrin was concerned that he remain
“distanced” from the lead cases since he was going to sit on the panel that
would hear them: Appeal Book vol. 11, p. 3098. Accordingly, Mr Bubrin had asked
not to be included in further communications about the lead cases, a suggestion
with which the Deputy Chair concurred (ibid.), saying:
it is a good idea to
provide some distance between the panel and Board management to avoid any
possible inference of improper influence over the panel’s deliberations.
[30]
Finally,
it should be noted that the Board planned the lead cases without either publicity,
or consultation with interested NGOs or members of the immigration and refugee
law bar, other than Mr Wuebbolt. The Board’s first public explanation of the
lead case strategy appeared in the “Lead Case Backgrounder”, which was not published
until March 1999, a month after the appellants had filed their applications for
leave to commence an application for judicial review challenging the procedural
fairness of the Board’s rejection of their refugee claims.
(iii) the lead cases’
hearing
[31]
As
already noted, while the Board normally assesses country conditions solely on
the basis of information available in the Board’s Documentation Centre, the
lead cases were distinguished by the presence at the hearing of the expert
witnesses called by the Minister’s representative. They testified on the
country conditions prevailing in Hungary for Roma, and were cross-examined
by Mr Wuebbolt, counsel for the appellants.
[32]
Counsel
who appeared for the appellants in the appeal to this Court, Mr Galati, made two
complaints about the procedure at the Board hearing. First, he said, the
appellants were excluded from the hearing room during the testimony of Dr Holtzl,
and had to view this part of the proceeding on a monitor in another room.
Second, he submitted that the translation of some of the expert testimony was
inadequate.
(iv) events after the
hearing of the lead cases
[33]
The
reasons of the Board in Smajda were signed by Ms Berger and concurred in
by Mr Bubrin, while Mr Bubrin signed the reasons in the Kozak case, and Ms
Berger concurred. The reasons in both cases are dated January 20, 1999. The
formal orders of the Board dismissing the appellants’ refugee claims were
signed on behalf of the Board on January 21, 1999.
[34]
Counsel
for the appellants referred to evidence of the publicity that the lead cases
had received in the media in Hungary, both before and after
the decisions in the appellants’ cases had been released by the Board. Mr Roger
Rodrigues, a lawyer practising with Mr Galati, attached as an exhibit to his
affidavit, dated July 11, 2000, a copy of the January 1999 issue of Roma
Rights: Appeal Book, vol. 10, pp. 2787-88. This publication stated that, on
January 5 and 7, 1999, two leading daily newspapers in Hungary had carried
stories about two decisions by the Board on refugee claims by Hungarian Roma. One
newspaper described the decisions as “precedent-setting” and stated that they
meant that Hungarian Roma refugee claims would not be accepted in Canada.
[35]
In
addition, each of the principal claimants of the Kozak and Smajda families
swore affidavits to the effect that, while searching the internet on January
18, 1999, they had come across the website of a Hungarian newspaper which stated
that a Canadian decision concerning refugee claims by two families of Hungarian
Roma was expected “in a couple of days”: Appeal Book, vol. 10, pp. 2726-27 and
2739-40.
[36]
These
affiants also referred to reports in two online Hungarian newspapers of January
22, 1999: Appeal Book, vol. 10, pp. 2727 and 2740. One newspaper announced a
“precedent decision” involving refugee claims by two Hungarian Roma families.
The identifying characteristics contained in the reports of the families
concerned indicate that they refer to the appellants. On the same day, Hungary’s largest
circulation newspaper carried a story under the headline, “Canada Does Not
Grant Asylum to Hungarian Roma”: Appeal Book, vol. 10, p. 2788.
[37]
The
Board’s decisions denying the appellants’ claims were signed on January 20,
1999, and released to the appellants the next day. Counsel suggested that a
reasonable person might think that these press reports referred to the
appellants’ cases and that, even before the decisions in the lead cases were signed,
officials of the Board or CIC had started to ensure that they were known in
Hungary, in order to deter Hungarian Roma from coming to Canada to claim
refugee status.
[38]
Counsel
for the appellants also pointed out that the percentage of positive decisions
rendered by panels of the Board in Hungarian Roma claims dropped dramatically
in the six months after the publication of the reasons in the lead cases: Appeal
Book, vol. 10, pp. 2807 and 2810-11. Affidavits sworn by refugee lawyers and by
officers from the Roma Advocacy Centre in Toronto state that, following the
release of the reasons in the lead cases, the Board routinely rejected
Hungarian Roma claims on the basis of the lead cases, without any independent
assessment of the evidence of country conditions: Appeal Book, vol. 10, pp.
2755-74.
[39]
Thus,
the percentage of positive decisions dropped from 71% in December 1998 to 27% in
the three months after the decisions in the lead cases were released and to 9%
in the next thee months. In the first six months of 2002, the percentage of positive
decisions in Toronto was 6%, well
below the average for this period in Montreal, Calgary and Vancouver. Based on
these statistics and affidavits, counsel submitted that a reasonable person would
think that the impact of the lead cases in Toronto confirmed
that they had been designed to reduce the number of positive decisions in the
future.
[40]
To
the extent that the lead cases were intended to establish a firm factual and
legal foundation for the future determination of Hungarian Roma claims
(especially on the questions of whether claimants faced persecution or
discrimination, and the adequacy of state protection), they did not prove very
successful. Several Hungarian Roma claimants, whose claims the Board had rejected
on the basis of the findings of fact in the lead cases, successfully applied
for judicial review.
[41]
Thus,
in a number of cases, the Federal Court held that the Board had relied too
heavily on the country condition findings described in the “Hungarian lead case
information package”, which contained more than 75 documents and transcripts of
the oral evidence given by the six expert witnesses at the lead case hearings,
without making its own analysis of the evidence before it. See, for example, Polgari
v. Canada (Minister of Citizenship and Immigration), 2001 FCT 626; Sarkozi
v. Canada (Minister of Citizenship and Immigration), 2001 FCT 649; Balogh
v. Canada (Minister of Citizenship and Immigration) 2002 FCT 809;
Mohacsi v. Canada (Minister of Citizenship and Immigration), [2003]
4 F.C. 771, 2003 FCT 429 (F.C.). In other cases respecting Hungarian Roma
refugee claims, the Court has upheld negative decisions by the Board on the
adequacy of state protection: see, for example, Racz v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1293, where some of the conflicting
authorities are listed.
C. THE FEDERAL
COURT’S DECISION
[42]
The
Applications Judge in this case rejected all the grounds of review advanced by
the appellants. He concluded that they had failed to establish that: the “lead
case” initiative was not authorized by the Immigration Act; its origin
and execution created a reasonable apprehension of bias; the appellants were
denied procedural rights at the hearing by their temporary exclusion from the
hearing room and by inadequacies in the translation of oral evidence; and the
Board committed reviewable errors in concluding that Hungarian authorities
denied them adequate state protection from persecution. Nonetheless, having
found that “special reasons” existed, he awarded costs to the appellants.
[43]
Of
particular relevance to this appeal is the Judge’s conclusion that the Board’s
motive for the lead case initiative was to help to ensure consistent decisions
in the determination of refugee claims by Hungarian Roma. He found also that
the e-mail evidence relied on by the appellants was insufficient to establish a
reasonable apprehension of bias on the ground of a pre-disposition on the part
of the hearing panel, as a result of the prior organization of the lead cases
by members of the Board’s management, including Mr Bubrin, and the contacts
between the Board and the CIC regarding Hungarian Roma claims.
D. ANALYSIS
Two preliminary matters
(a) standard
of review
[44]
Whether
a tribunal’s decision was made in breach of the duty of procedural fairness,
including the requirement of impartiality, is determined by a reviewing court
on a standard of correctness.
[45]
In
determining whether an administrative tribunal committed a reviewable error, an
appellate court should normally put itself in the shoes of the Applications
Judge: the focus of an appellate court thus generally remains on the reasons
and actions of the agency under review, rather than on the reasons of the
Applications Judge.
[46]
In
this case, I have reached a different conclusion from the Applications Judge on
whether the facts give rise to a reasonable apprehension of bias. In my
respectful view, he did not recognize that, since Charter rights are at stake
in refugee proceedings before the Board, an independent adjudicative body, the
reasonable apprehension of bias standard is particularly demanding.
[47]
Contrary
to the Judge’s conclusion, the appellants may establish a reasonable
apprehension of bias without proving the motivation of the Board in
orchestrating the lead cases. In my respectful view, it is sufficient that a
reasonable person could conclude from a review of the evidence as a whole that
the Board’s motive was such as to make it more likely than not that the hearing
panel was not impartial.
(b) the
certified question
[48]
In
view of the conclusion to which I have come, I need only address two
substantive issues in these reasons. First, did the circumstances preceding the
hearing and determination of the appellants’ refugee claims by the Board give
rise to a reasonable apprehension of bias or lack of independence on the part
of the panel members who heard and decided them? Second, if they did, was the
appellants’ right to relief waived by their and Mr Wuebbolt’s failure to raise
the issue of bias earlier? The third issue to be addressed concerns the
Applications Judge’s award of costs to the appellants.
[49]
Accordingly,
I do not find it necessary to answer the question certified by the Applications
Judge, namely,
“Did the IRB have
jurisdiction to conduct a “lead case” under the Immigration Act?”
The Minister relied on the following provision
in the Immigration Act as legal authority for the lead case strategy:
|
65(3) The Chairperson may, after consulting with the Deputy
Chairperson and the Assistant Deputy Chairpersons of the Refugee Division and
the Appeal Division and the coordinating members of the Refugee Division, issue
guidelines to assist the members of the Refugee Division and Appeal
Division in carrying out their duties under this Act.
|
65(3) Le président, après consultation du vice-président et des
vice-présidents adjoints de la section du statut et de la section d'appel et
des membres coordonnateurs de la section du statut, peut, par écrit, donner
des directives aux membres de ces sections en vue de les assister dans
l'exécution de leurs fonctions.
|
This provision has been replaced by
subsection 159(1) of the IRPA:
|
159.
(1) The Chairperson is, by virtue of holding that office, a member of each
Division of the Board and is the chief executive officer of the Board. In
that capacity, the Chairperson
…
(h)
may issue guidelines in writing to members of the Board and
identify decisions of the Board as jurisprudential guides, after
consulting with the Deputy Chairpersons and the Director General of the
Immigration Division, to assist members in carrying out their duties;
…
|
159.
(1) Le président est le premier dirigeant de la Commission ainsi que membre
d'office des quatre sections; à ce titre :
sections
autres que la Section de l'immigration;
[…]
h) après consultation des vice-présidents et du
directeur général de la Section de l'immigration et en vue d'aider les
commissaires dans l'exécution de leurs fonctions, il donne des directives
écrites aux commissaires et précise les décisions de la Commission qui
serviront de guide jurisprudentiel;
[…]
|
[50]
The
Board issued no
guideline under the Immigration Act respecting a lead case format for claims
by Hungarian Roma. However, I do not decide whether the Board required explicit
statutory authority for its lead case initiative. Differences in the underlined
wording of these two statutory provisions make it inappropriate to opine
needlessly on the meaning of either the repealed provision or its replacement.
Issue 1: Were the lead
case decisions vitiated by bias or lack of independence?
(i) the applicable test
[51]
Applying
the familiar test of bias articulated by de Grandpré J. in Committee for Justice
and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369 at 394,
the Applications Judge concluded that the appellants had not established that
the circumstances surrounding the origin, planning and execution of the lead
cases gave rise to a reasonable apprehension of bias. Accordingly, he concluded
that the adoption of procedures by an administrative agency to promote
consistent decision-making was warranted, provided that the independence of
future panels was not thereby compromised.
[52]
Although
trite, the definition of bias bears repetition. A tribunal’s decision is liable
to be set aside for bias if a reasonable person, who was reasonably informed of
the facts and had thought the matter through in a practical manner, would
conclude on a balance of probabilities that the decision maker was not
impartial. A similar test determines whether a tribunal is independent. Three
preliminary considerations may be added to this general proposition.
[53]
First,
the standard of impartiality expected of a particular administrative
decision-maker depends on context and is to be measured by reference to the
factors identified by L’Heureux-Dubé J. in Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 at para. 47. The
independence of the Board, its adjudicative procedure and functions, and the
fact that its decisions affect the Charter rights of claimants, indicate that
the content of the duty of fairness owed by the Board, including the duty of
impartiality, falls at the high end of the continuum of procedural fairness.
[54]
The
reasonable person in the rule against bias is not to be equated with either the
losing parties or the unduly suspicious. However, the high standard of impartiality
and independence applicable to the Board will be reflected in the determination
of whether the appellants have established a reasonable apprehension of bias.
[55]
Second,
the Board is charged with a uniquely difficult mandate of administrative
adjudication. For instance, throughout the 1990s, the Board carried a very
heavy caseload and had a large membership. Its approximately 200 members sat
across Canada in panels of two. The
Board had to keep abreast of the often rapidly changing human rights conditions
in the places from which refugee claimants came, and was subject to unpredictable
and sudden increases in claimants from particular countries. In addition,
because of the often sensitive nature of its subject-matter, the Board operated
in the glare of the political and public attention attracted both by individual
decisions and more systemic issues, such as the time taken to render decisions
and the backlog of cases waiting to be heard.
[56]
In
view of these challenges, the Board has had to devise means of maintaining and
enhancing the consistency and quality of its decisions, which is of critical
importance to its ability to perform its statutory functions and to retain its legitimacy.
To this end, the Board’s procedure should not be confined in a model of due
process that draws exclusively on the judicial paradigm and discourages innovation.
Nonetheless, procedures designed to increase quality and consistency cannot be
adopted at the expense of the duty of each panel to afford to the claimant
before it a high degree of impartiality and independence.
[57]
Third,
the legal notion of bias connotes circumstances that give rise to a belief by a
reasonable and informed observer that the decision-maker has been influenced by
some extraneous or improper consideration. Similarly, a belief that a
decision-maker is not independent goes to the improper surrender of
freedom as to how disputes should be decided. In determining propriety, the
legitimate interests of the agency in the overall quality of its decisions
cannot be ignored.
(ii) applying the test to the facts
[58]
I
cannot point to a single fact which, on it own, is sufficient to establish bias.
There is, for example, no evidence of a statement by a senior Board official or
member that the purpose of the lead cases was to reduce the number of positive
decisions in Hungarian Roma cases and to deter potential claimants, although
there are references early in the planning stage to the high rate of positive
decisions previously rendered, to CIC’s concerns about this, and to public
opinion.
[59]
I
would identify Mr Bubrin’s participation in the hearings as particularly
unfortunate, given the leading role that he had had in planning and organizing
with Board management the lead cases. The fact that the Board did not involve
members of the refugee Bar or interested NGOs in the planning process for this
novel initiative, and released no explanatory public statement until after the
appellants had sought leave in the Federal Court to apply for judicial review,
also contributed to creating a cloud of suspicion.
[60]
Nonetheless,
despite the absence of a “smoking gun”, I have concluded on the basis of the entire
factual matrix of this case that a reasonable person who had considered every
aspect of the matter and had thought it through carefully, would think that the
hearing panel was biased and was not acting independently when it rejected the
appellants’ claims for refugee status.
[61]
Reading
the e-mails exchanged among members of the senior management in the early stages,
a person could reasonably conclude that the lead case strategy was not only designed
to bring consistency to future decisions and to increase their accuracy, but also
to reduce the number of positive decisions that otherwise might be rendered in
favour of the 15,000 Hungarian Roma claimants expected to arrive in 1998, and
to reduce the number of potential claimants.
[62]
As
counsel for the appellants pointed out, the Board’s previous decisions on
similar claims had been overwhelmingly positive, with little evidence of inconsistency.
The e-mails also reveal that, on the basis of meetings with CIC officials, members
of the Board’s management believed that CIC had concerns about the high number
of positive decisions, which they believed resulted from the inaccuracy of the
information on which the Board had based decisions regarding claims by Hungarian
Roma, and were looking for a procedure that would satisfy those concern.
[63]
When
considered in the context described above, the Board’s selection of both the
lawyer and the cases to serve as the “lead cases”, without any wider
consultation with the immigration and refugee Bar, would also trouble the
reasonable observer. The Board’s selection of the lawyer and of the lead cases
may be seen as part of Board management’s response to the concerns of CIC about
the Board’s previous positive decisions and its future handling of a large
number of Hungarian Roma claims.
[64]
Mr
Bubrin’s decision to sit on the hearing panel provided a link between the
adjudication of the appellants’ claims, and the activities on the part of the
Board’s management, including Mr Bubrin as head of the European case management
team, in initiating and planning the lead cases. Indeed, recognizing the
delicacy of his position, Mr Bubrin requested after he had decided to sit on
the panel that he be not included in e-mails regarding the lead cases.
[65]
To
summarize, given the high standard of impartiality to which the Board is held
in its adjudicative capacity, a reasonable person might well have concluded on the
basis of the above that the panel hearing the appellants’ claims was not
impartial. This is because one of its two panel members may have been predisposed
towards denying the appellants’ claims since he had played a leading role in an
exercise that may seem to have been partly motivated by a desire by CIC and the
Board to produce an authoritative, if non-binding legal and factual
“precedent”, particularly on the adequacy of state protection, which would be
used to reduce the percentage of positive decisions in claims for refugee
status by Hungarian Roma. The panel may reasonably be seen to have been insufficiently
independent from Board management and thus tainted by the Board’s motivation
for the leading case strategy. Support for a belief that the lead case strategy
was motivated by a desire to deter potential claimants is the apparent leak to
the Hungarian media of the negative decisions before they were released, and
the ensuing publicity calculated to deter Roma from leaving for Canada in order to claim
refugee status.
Issue 2: Did the appellants waive their right
to judicial review?
[66]
Parties
are not normally able to complain of a breach of the duty of procedural
fairness by an administrative tribunal if they did not raise it at the earliest
reasonable moment. A party cannot wait until it has lost before crying foul. In
this case, however, the appellants could not have known of the circumstances
surrounding the origin and planning of the lead cases, including the
involvement of a panel member, Mr Bubrin. Indeed, the Board provided the
appellants with no explanation of the format and potential significance of the “lead
case”.
[67]
Nonetheless,
the Minister argues that the appellants’ counsel before the Board, Mr Wuebbolt,
was fully aware of the situation and had participated willingly and actively in
the planning process for the lead cases, and therefore had sufficient knowledge
to enable him to object before the decisions were rendered.
[68]
While
parties to litigation are generally bound by the conduct of their counsel, in
the circumstances of this case it does not serve the interests of justice to
apply this general rule. While Mr Wuebbolt gave some kind
of briefing to the appellants on their hearing and obtained their consent to
the process, he was not aware of all the facts that gave rise to the reasonable
apprehension of bias. In particular, he was not privy to most of the intra-Board
e-mails referred to in these reasons. Nor is there reason to believe that he
was aware of the apparent “leak” to the Hungarian news media about the Board’s
decisions prior to their release. Second, Mr Wuebbolt’s involvement with the
Board’s selection of the lead cases, and other aspects of the process, may have
caused him to lose sight of his role as the appellants’ counsel.
Issue 3: Should the Applications
Judge’s award of costs to the appellants be set aside?
[69]
Costs
may only be awarded in immigration and refugee matters if “for special reasons”
the Court so orders: Federal Court Immigration and Refugee Protection Rules,
SOR /93-22, section 22. Nonetheless, and despite the fact that he dismissed the
appellants’ application for judicial review, the Applications Judge awarded the
appellants their costs. The Judge held (at para. 77) that “the novel and
recognized contentious nature of the lead case at the time that it was brought”
constituted “special reasons” warranting an award of costs.
[70]
Given
the broad discretion exercisable over costs, and the Judge’s awareness of the
fact that costs are only awarded in immigration and refugee matters in limited
circumstances, I am not persuaded that, on the unusual facts of this case, the
Judge erred in principle in awarding costs to the appellants. Having so
concluded, I need not determine the appellants’ motion to strike from the
Minister’s memorandum of fact and law the paragraphs challenging the
Applications Judge’s award of costs.
E. CONCLUSIONS
[71]
For
these reasons, I would allow the appeals, set aside the order of the
Applications Judge except for the award of costs, allow the applications for
judicial review, set aside the decisions of the Board, and remit the matters to
the Board, differently constituted, for re-determination. For the reasons given
by the Applications Judge, as well as the extra-record material obtained by
counsel in order to establish that the process culminating in the decisions in
the lead cases was flawed, the appellants should be awarded costs on this
appeal pursuant to section 22.
[72]
I do
not know how many negative decisions have been rendered subsequently by the
Board in which the “lead case information package” was used. Nor do I know how
many of these decisions have been upheld on judicial review. I would only note that
the decision in the present appeals does not necessarily mean that the factual
conclusions in the lead cases are unreliable, or that subsequent decisions
which have relied, to any extent, on the findings in the lead cases are thereby
vitiated.
“John M. Evans”
“I
agree
Robert Décary J.A.”
“I agree
K. Sharlow J.A.”
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