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Procedures – Legal Services
Policy statement – Other reviews
Objectives of Reasons Review
Policy Statement – Review by Legal Services
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.
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.
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.
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
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.
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.
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.
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
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.
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.
For more information, please contact
Policy, Engagement and Parliamentary Affairs
Minto Place—Canada Building
344 Slater Street, 12th Floor
Ottawa, Ontario K1A 0K1
Signed by Richard Wex
September 16, 2021