Reasons Review Policy

September 2021

1. Purpose

The purpose of the Reasons Review Policy is to provide for transparency and consistency with respect to the policy and procedures regarding reasons review at the Immigration and Refugee Board of Canada (IRB or the Board). This Policy recognizes the important principle that IRB members are independent in their decision-making.

2. Application

This Policy is issued by the Chairperson and is effective as of the date it is approved. It replaces all previous versions of the Reasons Review Policy.

This Policy applies to the review by Legal Services of draft reasons for decision that decision-makers (or members) of the IRB have prepared in writing, as well as to the review of proposed oral reasons for decision.

This Policy also applies to the review of draft decisions by other members, member managers and mentors as described in section 7: Policy Statement – Other Reviews.

3. Background

The IRB is an independent administrative tribunal which consists of the Refugee Protection Division (RPD), the Refugee Appeal Division (RAD), the Immigration Division (ID) and the Immigration Appeal Division (IAD).^{Footnote 1} The RPD and the ID are composed of decision-makers who are appointed in accordance with the Public Service Employment Act, and the RAD and the IAD are composed of decision-makers who are appointed by the Governor in Council for fixed terms. The decision-makers of the Board come from different walks of life and many join the Board without legal training.^{Footnote 2}

The IRB Legal Services Branch is responsible for providing a full range of legal and policy advice in an efficient and professional manner to the Chairperson, senior management, decision-makers and other IRB personnel. As one of its activities, upon request, Legal Services reviews draft reasons for decision. The objectives of reasons review are described in Section 4 below.

In Weerasinge,^{Footnote 3} the Federal Court of Appeal approved of the practice of the Board to have the reasons of its members reviewed by legal counsel before their release. The Court stated that the value of review of draft reasons is manifest having regard to the composition of the Refugee Division at that time and the nature of its decisions. Further, the Court found that the taking of legal advice on draft reasons does not breach the rules of natural justice. Subsequently, in Bovbel,^{Footnote 4} the Federal Court of Appeal found no fault with the Board's April 1993 reasons review policy.

4. Objectives of Reasons Review

The objectives of reasons review are:

to assist the IRB in accomplishing its mission to resolve immigration and refugee matters fairly, efficiently and in accordance with the law;
to assist decision-makers in accurately reflecting the rationale for their decisions by commenting or advising, where appropriate, on the matters set out under the section entitled "Scope of Reasons Review";
to assist decision-makers by offering services that meet their individual needs, especially as part of new member training;
to assist the IRB in identifying topics for professional development; and
to assist the IRB in making its case law accessible to decision-makers and employees of the Board and to the public through the identification of decisions for publication.

5. Policy statement – Review by Legal Services

5.1 Voluntariness

Reasons review is an optional service offered to all decision-makers. The decision-maker is free to accept or to reject comments made by Legal Services.

A member manager may recommend to a member that they should have Legal Services review their draft reasons because of the complexity or novelty of the case or because the member manager is of the view it would be consistent with the objectives of reasons review.

The training of new members is a special situation. Reasons review is an important component of the IRB's training program for new members. Therefore, during their training or probationary period of employment all new members are expected to make use of the reasons review service offered by Legal Services unless their member manager decides that it is no longer required.

A member manager may identify experienced members who are in need of remedial training. Members in remedial training are expected to use Legal Services' reasons review service unless their member manager decides that it is not required.

5.2 Confidentiality

A decision-maker's notes and draft reasons belong to the decision-maker, not to the Board.^{Footnote 5}

The Reasons Review Policy is subject to the Chairperson's Instructions Governing Solicitor-Client Privilege and the Confidentiality of Legal Advice at the IRB (“Chairperson's Instructions”).^{Footnote 6} Among other things, the Chairperson's Instructions provide that where an IRB member seeks legal advice regarding draft reasons for decision, the IRB will treat that legal advice as a confidential communication between the member and Legal Services. In other words, Legal Services will not disclose to management the communication between the member and Legal Services. However, decision-makers may share comments from Legal Services with other members, including members managers, if the decision-maker wishes to do so.

Where a matter before a Division is conducted by a panel of three members, the comments that Legal Services makes on draft reasons for decision are available to all members of that panel.^{Footnote 7}

The specific comments made by Legal Services on draft reasons are not used for the purposes of a decision-maker's performance appraisal.

Legal Services may provide general comments about a new member's draft reasons to a member manager which may be used for the purposes of performance appraisal during a new member's training or probationary period of employment.

The comments made by Legal Services on draft reasons may be used in a generic way, consistent with the Chairperson's Instructions, to develop criteria for a performance appraisal form, to identify training and professional development needs of members, to identify areas requiring policy development, and to anticipate the demand for legal services.

With respect to experienced members in remedial training, Legal Services will provide general comments about members' draft reasons to a member manager. These comments may be used to determine future professional development needs for the identified member, but will not be used for performance appraisal purposes.

After a member has rendered a final decision and reasons, Legal Services may provide comments to member managers with respect to the final decision and reasons, but not with respect to the draft reasons, unless otherwise permitted by this policy.

5.3 Implementation

Reasons review is a flexible exercise. The nature of comments by Legal Services may vary according to the experience of decision-makers and the complexity and novelty of the issues involved.

Comments that are provided are respectful of the independence of the decision-maker; are consistent with the objective of giving concise reasons; and encourage the decision-maker to focus on essential issues and analyses.

5.4 Scope of Reasons Review

There are two types of review of written reasons: the standard review and the selective review. Legal Services provides the standard review unless the decision-maker requests a selective review.

Legal Services is also available to provide advice on proposed oral reasons. A member may also seek legal advice from Legal Services during the course of proceedings on any issue relevant to the proceedings, and the same general principles from sections 5.1 to 5.3 above will apply.

5.4.1 Standard review

A standard review is usually based on the draft reasons without further information. However Legal Services may access the case file if it will help in meeting the objectives of reasons review.

A standard review involves making succinct or amplified comments that identify and, where appropriate, give advice on:

essential substantive legal and procedural issues;
alternative legal analyses, but only where they appear necessary and expedient to resolve the issues identified in the reasons;
potential errors of law;
apparent inconsistencies and incoherence in the draft reasons; and
jurisprudence, including jurisprudential guides and persuasive decisions, legal opinions and other legal reference materials, Chairperson's guidelines, and policies that may be relevant to the draft reasons.^{Footnote 8}

5.4.2 Selective review

A selective review involves giving advice on an issue or issues identified by a decision-maker.

5.5 Limitations

The review of reasons for decision by Legal Services does not ordinarily include:

the review of the written version of reasons that were delivered orally;
the identification of factual inconsistencies between the reasons and information on the file; and
the identification of errors in grammar, syntax, punctuation, spelling or quotations unless errors adversely affect coherence.

5.6 Oral reasons for decision

Statutory provisions permit members to render decisions orally or in writing in most cases.^{Footnote 9} The Refugee Protection Division Rules establish that oral decisions and reasons are the norm in the RPD.^{Footnote 10} Oral decisions and reasons are also the norm in practice at the ID, and are encouraged at the IAD. Currently, oral decisions and reasons are not permitted at the RAD.

Legal Services will give high priority to providing members who request advice regarding their proposed oral reasons.

6. Procedures – Legal Services

6.1 Form

Members should submit their final draft of proposed written reasons to Legal Services in an electronic format.

A member may meet with Legal Services to discuss proposed oral reasons. The member may choose to use notes to facilitate that discussion or may choose only to have an oral discussion.

In addition to formal reasons review, Legal Services is also available at any stage of the process to provide legal advice to members.

6.2 Timely processing

Legal Services will give high priority to completing its review of written reasons in a timely way and will set its commitments for processing time limits in light of Divisional needs as well as taking into account the priority that must be given to oral reasons.

6.3 Further reviews

Legal Services normally reviews written reasons only once, however, additional reviews may be provided in exceptional circumstances.

6.4 Management responsibility

The implementation of this policy is the responsibility of the General Counsel, Legal Services, whose duties include assigning legal counsel to reasons review, developing effective review strategies, and meeting the needs of the Divisions within their regions.

7. Policy statement – Other reviews

Decision-makers may also consult with other members, including member managers, on their draft reasons to ensure quality of decision making.^{Footnote 11} This consultation is voluntary and only at the initiative of the decision-maker.^{Footnote 12} If assigned a mentor, the decision-maker should consult with the mentor for the purposes of providing advice on adjudicative skills.

Decision-makers are free to accept or reject any comments made on draft reasons by member managers, mentors or other members.

At the conclusion of a new member's mentorship period, mentors may provide a global assessment of a new member's draft and/or final decisions and reasons to a member manager which may be used for the purposes of performance appraisal during a new member's training or probationary period of employment.

With respect to experienced members in remedial training, mentors will provide general comments about members' draft reasons to a member manager. These comments may be used to determine future professional development needs for the identified member but will not be used for performance appraisal purposes.

8. Monitoring

Program monitoring and evaluation of this policy is the responsibility of the Operational Policy unit within Policy, Engagement and Parliamentary Affairs Branch, in collaboration with the Legal Services Branch and each of the Divisions of the Board.

9. Enquiries

For more information, please contact IRB.Policy-Politiques.CISR@irb-cisr.gc.ca

Policy, Engagement and Parliamentary Affairs
Minto Place—Canada Building
344 Slater Street, 12th Floor
Ottawa, Ontario K1A 0K1

10. Approval

Signed by Richard Wex
Chairperson
September 16, 2021

Footnotes

Footnote 1

Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, s. 151.

Return to footnote 1 referrer

Footnote 2

IRPA, s. 153(4), currently provides that the Deputy Chairperson of the Immigration Appeal Division and a majority of the Assistant Deputy Chairpersons of that Division and at least 10 per cent of the members of the Refugee Appeal Division and the Immigration Appeal Division must be members of at least five years standing at the bar of a province or notaries of at least five years standing at the Chambre des notaires du Québec. There is no similar statutory qualification for members of the Refugee Protection Division and the Immigration Division.

Return to footnote 2 referrer

Footnote 3

Weerasinge v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 330 (C.A.).

Return to footnote 3 referrer

Footnote 4

Bovbel v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 563 (C.A.). Application for leave to appeal to the Supreme Court of Canada dismissed September 8, 1994 (case number 24108). The Federal Court of Appeal (FCA) held that even if the Board's Reasons Review Policy was formulated so as to give the impression that draft reasons were to be reviewed as a general rule, “we fail to understand how, if the Board's policy was otherwise unobjectionable, the fact that it was generally applied could make it bad.” The FCA also stated: “Surely, if there is nothing wrong in the author of the reasons receiving the comments of a legal advisor, there cannot be any wrong in making those comments known to the other member of the Board who is asked to concur in the reasons.” Regarding discussion of facts, the FCA stated: “A fair reading of the documents on the record shows, in our view, that the legal advisors were not expected to discuss the findings of facts made by the members but merely, if there was a factual inconsistency in the reasons, to look at the file in order to determine, if possible, how the inconsistency could be resolved. True, there was always the possibility that the legal advisors might, since they were in possession of the file, exceed their mandate and try to influence the factual findings of the Board. However, as mentioned by Mahoney J.A. in Weerasinge, any policy is susceptible of abuse.”

Return to footnote 4 referrer

Footnote 5

Tunian v. Chairman of the Immigration and Refugee Board, 2004 FC 849 (CanLII), involved an application made pursuant to section 41 of the Privacy Act, R.S.C. 1985, c. P-21, for judicial review of the IRB’s decision not to disclose draft reasons prepared by an IRB member who determined that the applicants were not Convention refugees. The Federal Court stated at para. 9: “…The Board does not require the Board Member to keep draft reasons or notes from a hearing on the official record, as it is part of the decision-making process associated with an independent adjudicative function and, as such, should not be under the control of the Board. Rather, the Board's policy is that Board Members are encouraged to keep notes to the extent that notes are an aid in the decision-making process. Accordingly, all notes, including draft reasons, prepared by Board Members are considered to belong to the Board Member.”

Return to footnote 5 referrer

Footnote 6

Instructions Governing Solicitor-Client Privilege and the Confidentiality of Legal Advice at the Immigration and Refugee Board of Canada (Effective date: September 16, 2021).

Return to footnote 6 referrer

Footnote 7

Bovbel v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 563 (C.A.).

Return to footnote 7 referrer

Footnote 8

Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at paras. 130 and 131.

Return to footnote 8 referrer

Footnote 9

IRPA, s. 169, reads:

169. In the case of a decision of a Division, other than an interlocutory decision:

(a) the decision takes effect in accordance with the rules;
(b) reasons for the decision must be given;
(c) the decision may be rendered orally or in writing, except a decision of the Refugee Appeal Division, which must be rendered in writing;
(d) if the Refugee Protection Division rejects a claim, written reasons must be provided to the claimant and the Minister;
(e) if the person who is the subject of proceedings before the Board or the Minister requests reasons for a decision within 10 days of notification of the decision, or in circumstances set out in the rules of the Board, the Division must provide written reasons; and
(f) the period in which to apply for judicial review with respect to a decision of the Board is calculated from the giving of notice of the decision or from the sending of written reasons, whichever is later.

Return to footnote 9 referrer

Footnote 10

Rule 10(8) of the Refugee Protection Division Rules, SOR/2012-256, provides that an RPD member "must render an oral decision and reasons for the decision at the hearing unless it is not practicable to do so."

Return to footnote 10 referrer

Footnote 11

See IWA v Consolidated-Bathurst Packaging Ltd., [1990] 1 SCR 282; Tremblay v Quebec (Commission des affaires sociales), [1992] 1 SCR 952; Ellis-Don Ltd. v Ontario (Labour Relations Board), 2001 SCC 4; and Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 at para. 98.

Return to footnote 11 referrer

Footnote 12

See Shuttleworth v. Ontario (Safety, Licensing Appeals and Standards Tribunals), 2019 ONCA 518 at paras. 33 and 34.

Return to footnote 12 referrer

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Reasons Review Policy

On this page

1. Purpose

2. Application

3. Background

4. Objectives of Reasons Review

5. Policy statement – Review by Legal Services

5.1 Voluntariness

5.2 Confidentiality

5.3 Implementation

5.4 Scope of Reasons Review

5.4.1 Standard review

5.4.2 Selective review

5.5 Limitations

5.6 Oral reasons for decision

6. Procedures – Legal Services

6.1 Form

6.2 Timely processing

6.3 Further reviews

6.4 Management responsibility

7. Policy statement – Other reviews

8. Monitoring

9. Enquiries

10. Approval

Thank you for your help!

Reasons Review Policy

​On this page​

1. Purpose

2. Application

3. Background

4. Objectives of Reasons Review

5. Policy statement – Review by Legal Services

5.1 Voluntariness

5.2 Confidentiality

5.3 Implementation

5.4 Scope of Reasons Review

5.4.1 Standard review

5.4.2 Selective review

5.5 Limitations

5.6 Oral reasons for decision

6. Procedures – Legal Services

6.1 Form

6.2 Timely processing

6.3 Further reviews

6.4 Management responsibility

7. Policy statement – Other reviews

8. Monitoring

9. Enquiries

10. Approval

Thank you for your help!

On this page