Chairperson Guideline 6: Scheduling and Changing the Date or Time of a Proceeding

Table of Contents

1. Introduction
2. Purpose
3. Principles Applicable to all Divisions
   1. 3.1 General
   2. 3.2 Procedure
   3. 3.3 Scheduling
   4. 3.4 Vulnerable Persons
   5. 3.5 Official Languages and use of an Interpreter
   6. 3.6 Counsel
   7. 3.7 Medical Reasons
   8. 3.8 Self-represented Persons
   9. 3.9 Time to Prepare for Proceedings
   10. 3.10 Other Immigration Proceedings
   11. 3.11 Consent
   12. 3.12 Legal Aid
4. Immigration Appeal Division
5. Refugee Appeal Division
6. Immigration Division
7. Refugee Protection Division
8. Enquiries

1. Introduction

1.1 The Immigration and Refugee Board of Canada (IRB) is a quasi-judicial, independent administrative tribunal that operates less formally and more expeditiously than a traditional court of law. Accordingly, the Immigration and Refugee Protection Act^{Note 1} (IRPA) requires that each division of the IRB deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit.^{Note 2}

1.2 The IRB originally issued Chairperson's Guideline 6 on December 1, 2003. At the time, it applied only to the Refugee Protection Division (RPD). The Guideline was expanded to the then existing two other divisions, the Immigration Appeal Division (IAD) and the Immigration Division (ID) and was reissued in April, 2010. It is again being updated to reflect important changes to the IRPA set out in the Balanced Refugee Reform Act^{Note 3} and the Protecting Canada's Immigration System Act.^{Note 4} These changes include the addition of another division to the IRB, the Refugee Appeal Division (RAD), strict timelines within which the RPD must hear refugee claims, and special detention provisions for designated foreign nationals before the ID.

1.3 In this document, "counsel" refers both to counsel for the subject of a proceeding before the IRB and Minister's counsel.

2. Purpose

2.1 The purpose of this Guideline is to explain the process the IRB follows before and during a hearing to ensure fair and efficient scheduling of its proceedings. This Guideline also sets out what the IRB expects of participants and what participants can expect from the IRB. While Chairperson's Guidelines are not mandatory, members are expected to apply them or provide a reasoned justification for not doing so.

2.2 This Guideline is to be read in conjunction with the rules of each division.^{Note 5} It is intended that it be sufficiently flexible to take into account the various circumstances that arise in the four divisions.  To this end, the Guideline first sets out general principles that apply to all four divisions (section three), and then outlines particular circumstances which may give rise to special considerations in each respective division (sections four to seven).

3. Principles Applicable to all Divisions

4. Immigration Appeal Division

4.1 The IAD allows applications to change the date or time of a proceeding only in exceptional circumstances and where such a change is justified. When considering an application, the member considers all relevant factors, including those set out in IAD Rule 48(4), with an important consideration being whether or not the parties were consulted by the IAD and had agreed to the date and time. Where the parties have agreed to the date and time of a proceeding, that agreement will be regarded as an explicit and positive commitment to the IAD to be present and to be prepared to proceed at that date and time.

4.2 The IAD often hears witnesses who are located in other countries, particularly in residency obligation appeals and sponsorships appeals. Parties who wish to testify from abroad or call witnesses who are situated abroad are responsible for supplying a reliable means of communication, such as valid, pre-paid calling cards and a functional land-line telephone connection, in order to facilitate their testimony. The IAD will not generally grant an application to change the date or time of a proceeding in order to make arrangements to communicate with the party or witness, if the party has not supplied such means of communication or has not acted diligently in doing so.

4.3 The fact that there are pending criminal charges or a pending appeal of a conviction on criminal charges related to the appellant is not generally a sufficient reason for the IAD to grant an application to change the date or time of a hearing.

5. Refugee Appeal Division

5.1 The RAD holds an oral hearing only in limited circumstances.^{Note 22} While the time limits set out in the Immigration and Refugee Protection Regulations (IRPR)^{Note 23} for rendering a decision at the RAD do not apply when an oral hearing is held, the regulations signal a legislative intent for the expeditious resolution of refugee appeals.

5.2 The RAD allows applications to change the date or time of a proceeding only in exceptional circumstances and where such a change is justified. When considering an application, the member considers all relevant factors, including those set out in RAD Rule 67(5) with an important consideration being whether or not the parties were consulted by the RAD and had agreed to the date and time. Where the parties have agreed to the date and time of a proceeding, that agreement will be regarded as an explicit and positive commitment to the RAD to be present and to be prepared to proceed at that date and time.

5.3 In addition to the general requirements set out in section 3.7 of this Guideline, applications to change the date or time of a proceeding based on medical reasons, other than those related to counsel, must include the information required in Refugee Appeal Division Rules 67(7), (8) and (9).

6. Immigration Division

6.1 The ID allows applications to change the date or time of a proceeding only in exceptional circumstances and where such a change is justified. When considering an application, the member considers all relevant factors, including those set out in ID Rule 43(2), with an important consideration being whether or not the parties were consulted by the ID and had agreed to the date and time. Where the parties have agreed to the date and time of a proceeding, that agreement will be regarded as an explicit and positive commitment to the ID to be present and to be prepared to proceed at that date and time.

6.2 In addition, for detention reviews, compliance with mandatory statutory timeframes is a guiding principle.^{Note 24}

6.3 The ID does not generally grant applications to change the date or time of a detention review if doing so will result in the review being conducted outside the mandatory statutory timeframes. In cases where such an application is granted, the review will be rescheduled at the earliest possible date.

6.4 The ID does not grant applications to hold detention reviews outside the mandatory timeframes for the sole reason that the subject of the proceedings waives the right to have the detention reviewed within the timeframe.^{Note 25}

6.5 The ID does not grant applications to change the date or time of an admissibility hearing for the purpose of providing relief from the effect of issuing a removal order, such as avoiding the impact the issuance of a removal order may have on other legal processes.^{Note 26}

6.6 The fact that there is a pending appeal of a conviction on criminal charges related to the subject of the proceedings or a pending application for Ministerial relief from inadmissibility^{Note 27} is not generally a sufficient reason for the ID to grant an application to change the date or time of an admissibility hearing.

6.7 The fact that the subject of the proceedings is detained will be an important consideration when deciding an application to change the date and time of an admissibility hearing. In such a case, if the application is granted, the admissibility hearing will be rescheduled at the earliest possible time.

6.8 The ID expects the Minister to be prepared to proceed in an admissibility hearing from the date it is referred to the Division. The ID will not generally grant an application to change the date or time of an admissibility hearing brought by the Minister where the application is made in order to gather further evidence or prepare for the proceedings where it was reasonably foreseeable on the date of referral that such documentation or such efforts would be required.

7. Refugee Protection Division

7.1 On December 15, 2012 substantial amendments to the IRPA came into force. These changes signal a clear Parliamentary shift toward an emphasis on the expeditious resolution of refugee claims. This shift was further implemented through amendments to the IRPR. The Regulations stipulate, for the first time, that dates for refugee hearings be fixed within specific timeframes, being 30, 45, or 60 days depending on the type of claim.^{Note 28}

7.2 In light of the amendments to IRPA and the Regulations, the RPD takes a strict approach to scheduling and to applications to change the date or time of a hearing. Compliance with the mandatory regulatory timeframes for conducting RPD hearings is a guiding principle.

7.3 The RPD expects parties and their counsel to be ready to proceed on the date and time scheduled for the hearing. Applications to change the date or time of the hearing will be granted only in exceptional circumstances^{Note 29} and, where the application would cause the hearing to be heard outside the statutory timeframes, only if the evidence indicates that it is necessary in order to conform with the principles of natural justice.^{Note 30}

7.4 Where an application to change the date or time of a hearing is granted, the RPD will normally reschedule the hearing within ten working days.^{Note 31} Counsel and the parties are expected to be prepared to proceed on a date fixed during that time period.

7.5 The RPD recognizes that, at the time the officer fixes the date for a refugee hearing, the claimant may not have retained counsel or may not have their counsel's available dates. Consequently, the RPD grants applications to change the date or time of a hearing that was set by the officer if the application is made in accordance with Rule 54(5) of the Refugee Protection Division Rules, subject only to the division's operational requirements. If the application is granted, the new date must be within the time limits set out in the Regulations for the hearing of the claim. In all other cases, the RPD will generally not grant an application to change the date or time of the proceeding based solely on the fact that the claimant chose counsel who is not available on the date the officer fixed for the hearing.

7.6 In addition to the general requirements set out in section 3.7 of this Guideline, applications to change the date or time of a proceeding based on medical reasons, other than those related to counsel, must include the information required in Refugee Protection Division Rules 54(6), (7) and (8).

7.7 If a party requests a change of date or time of the proceedings for the purpose of obtaining documentation, the RPD generally proceeds and will determine at the end of the hearing whether or not it is necessary to grant a delay to obtain and provide the documents.

7.8 In accordance with the Instructions Governing the Management of Refugee Protection Claims Awaiting Front-end Security Screening,^{Note 32} and acting on its own initiative, the RPD may administratively postpone certain proceedings when confirmation from the Canada Border Services Agency on front-end security screening of a claimant has not been received.

7.9 Despite the changes to the IRPA that came into force on December 15, 2012, the RPD also continues to hear transitional claims that were referred to it prior to the coming into force of those amendments. In such cases, the mandatory time limits for the hearing of refugee claims set out in the Regulations do not apply. In these transitional cases, the RPD approach to applications to change the date or time of a proceeding, and to rescheduling a hearing following an accepted application to change the date or time of a proceeding, reflects this distinct legal context within which these claims were referred to the RPD.

8. Enquiries

For information, contact:

Director, Policy and Procedures Directorate
Operations Branch
Minto Place - Canada Building
344 Slater Street, 14th floor
Ottawa, Ontario K1A 0K1
Fax: 613-952-9083