Policy on the Use of Jurisprudential Guides

Policy no. 2003-01

Effective Date: March 21, 2003
Amended: December 1, 2016


Table of Contents

  1. Purpose
  2. Statutory authority
  3. Adjudication strategy
  4. Who may exercise this authority?
  5. Circumstances for exercise of Chairperson’s authority
  6. Criteria for selecting a decision
  7. Consultation
  8. Whether jurisprudential guide expires
  9. Effect of identification of decision as a jurisprudential guide
  10. References
  11. Enquiries
  12. Approval

1. Purpose

This policy governs the exercise of the Chairperson's authority to identify a decision as a jurisprudential guide in the Immigration Division, the Immigration Appeal Division, the Refugee Protection Division and the Refugee Appeal Division of the Immigration and Refugee Board (IRB, or the Board). This policy establishes:

  • a framework that guides in which cases the exercise of that authority may be carried out, and
  • the process for deciding to identify a decision as a jurisprudential guide.

Decisions of the Immigration Division, the Immigration Appeal Division, the Refugee Protection Division and the Refugee Appeal Division are all subject to judicial review, with leave, by a higher court, namely, the Federal Court. Decisions of that Court are subject to further appeal to the Federal Court of Appeal, if the Federal Court  certifies a question, and then to the Supreme Court of Canada, with leave.

The IRB must follow decisions of the Federal Court, the Federal Court of Appeal and the Supreme Court of Canada. Also, in accordance with section 171(c) of the Immigration and Refugee Protection Act (IRPA), a decision of a panel of three members of the Refugee Appeal Division has, for the Refugee Protection Division and for a panel of one member of the Refugee Appeal Division, the same precedential value as a decision of an appeal court has for a trial court. However, any other decision of any division of the IRB is not binding on a subsequent panel of that division.

2. Statutory authority

The Chairperson has the legislative authority to issue guidelines and to identify decisions as jurisprudential guides to assist members in carrying out their duties [IRPA, section 159(1)(h)]:

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, to assist members in carrying out their duties;

3. Adjudication strategy

The IRB's ability to establish a consistent and coherent body of jurisprudence depends, in part, on the establishment of a coordinated and rational approach to its adjudicative function. To be most effective, each division must establish a selective and strategic approach to the adjudication of issues. This adjudication strategy is aimed at identifying the relatively small number of cases that merit the division's particular attention because they are cases that have the potential to shape the Board's jurisprudence. These cases are the exceptional, as opposed to the routine, cases.

A number of different options are available that, taken together, constitute the tools that the Board has at its disposal to support its adjudication strategy. These are not mutually exclusive options, and any or all of them could be exercised at any particular time. These tools include the following:

  • Chairperson's guidelines
  • Identification of decisions as jurisprudential guides
  • Identification of decisions as persuasive decisions
  • Use of three-member panels (Refugee Protection Division,Footnote 1 Immigration Appeal Division and the Refugee Appeal Division)
  • Conduct of a lead case
  • Consultation amongst members on draft decisions in accordance with the principles in Consolidated-Bathurst Packaging Ltd. International Woodworkers of America, Local 2-69, [1990] 1 S.C.R. 282
  • The Board seeking leave to intervene in a higher court proceeding

Guidelines and jurisprudential guides are complementary tools, the purpose of which is to promote consistency, coherence and fairness in the treatment of cases at the Board. The inclusion of such a statutory provision on guidelines and jurisprudential guides indicates Parliament's intent that the Chairperson should be involved in the adjudication strategy of the IRB as a whole, in order to assist decision makers on matters of substantive and procedural importance.

Accordingly, the IRB has developed this policy which governs the exercise of the Chairperson's authority to identify a decision as a jurisprudential guide.

4. Who may exercise this authority?

The Chairperson has been given this authority under the IRPA, although the Chairperson may delegate this function under section 159(2). This authority is to be exercised at the Chairperson's discretion, after consulting with the Deputy Chairpersons.

The relevant division head shall submit any decision believed to be suitable to the Chairperson. The decision and reasons shall be accompanied by a memorandum from staff, countersigned by the Senior General Counsel, evaluating the legal considerations that could flow from the identification of the decision as a jurisprudential guide.

5. Circumstances for exercise of Chairperson’s authority

Section 159(1)(h) of the IRPA gives the Chairperson two separate powers: 1) to issue guidelines and 2) to identify decisions as jurisprudential guides. The stated purpose for the exercise of both of these powers is the same – to assist members in carrying out their duties.

The circumstances in which the Chairperson may consider exercising his or her authority to identify a decision as a jurisprudential guide are as follows:

  • To address an issue of importance to the Board,
  • To address an emerging issue,
  • To resolve an ambiguity in the law, or
  • To resolve inconsistency in decision-making.

A decision may be identified as a jurisprudential guide on either a question of law or a question of mixed law and fact.

6. Criteria for selecting a decision

The following general criteria are used to select a particular decision for identification as a jurisprudential guide. The decision and reasons must be:

  • well-written,
  • provide a detailed and clear analysis,
  • consider all of the relevant issues in the case, and
  • the Chairperson must be of the view that they contain persuasive reasoning that should be followed.

7. Consultation

In general, the Chairperson must consult with the deputy chairpersons as required by section 159(1)(h) of the IRPA.

Where it is the Chairperson who decides to exercise his or her authority to identify a decision as a jurisprudential guide, the Chairperson shall consult with the deputy chairpersons, as applicable, on the selection of a particular decision. However, as discussed in section 2 above, in most cases it will be the relevant division head who, on his or her own initiative, will submit a decision believed to be suitable to the Chairperson.

External consultation shall take place only in exceptional situations, which shall be determined at the discretion of the Chairperson.

8. Whether jurisprudential guide expires

The identification of a decision as a jurisprudential guide remains in effect unless and until the Chairperson expressly revokes it.

The Board will monitor decisions that have been identified as jurisprudential guides, as part of its continuous monitoring of the review of IRB decisions by higher courts. The Chairperson will make such a revocation if a higher court subsequently overturns the particular decision, or if the decision is inconsistent with a subsequent higher court decision.

In any other case, the decision whether or not to revoke the identification is left to the Chairperson's discretion, after consulting with the deputy chairpersons, as applicable.

9. Effect of identification of decision as a jurisprudential guide

The identification of a decision as a jurisprudential guide will be communicated to the public. The selected decision and reasons will be released in both English and French, and, where applicable, identifying information removed in order to maintain the privacy of the person concerned. Parties and their counsel will therefore be expected to know which decisions have been identified as jurisprudential guides.

At the time that the Chairperson identifies a decision as a jurisprudential guide, the Chairperson will also issue a statement setting out the scope of the jurisprudential guide.

Members are expected to follow the reasoning in a decision identified as a jurisprudential guide to the extent set out in the accompanying statement, unless there is reason not to do so, where the facts underlying the decision are sufficiently close to those in the case being decided to justify the application of the reasoning in the jurisprudential guide.

A member must explain in his or her reasoning why he or she is not adopting the reasoning that is set out in a jurisprudential guide when, based on the facts of the case, he or she would otherwise be expected to follow the jurisprudential guide.

10. References

  • Immigration and Refugee Protection Act
  • Consolidated-Bathurst Packaging Ltd.v. International Woodworkers of America, Local 2-69, [1990] 1 S.C.R. 282

11. Enquiries

For information, contact:

Director
Policy, Outreach and Engagement Directorate
Immigration and Refugee Board of Canada
Canada Building (Minto Place)
344 Slater Street
Ottawa, Ontario  K1A 0K1

12. Approval

Signed by Mario Dion
Chairperson

December 1, 2016