[2001] 3 F.C. 85
IMM-6132-99
2001 FCT 65
The Minister of Citizenship and Immigration (Applicant)
v.
Anita Bonsu Ekuban (a.k.a. Anita Nana Yaa Acheampong) (Respondent)
Indexed as: Canada (Minister of Citizenship and Immigration) v. Ekuban (T.D.)
Trial Division, O’Keefe J.—Toronto, November 28, 2000; Ottawa, February 13, 2001.
Citizenship and Immigration — Status in Canada — Convention refugees — Application for leave, judicial review of IRBAD’s denial of Minister’s application under Immigration Act, s. 69.2 to reconsider, vacate determination respondent Convention refugee — Minister alleging fraud, misrepresentation as to respondent’s identity — Alleging Acheampong, Ekuban same person and Ekuban entering Canada as foreign student in 1990 — Therefore, PIF indicating persecution in Ghana in 1991 cannot be true — Refugee Division permitting introduction of written, oral evidence to support respondent’s claim two different people — S. 69.3 providing where application made pursuant to s. 69.2, Refugee Division shall afford Minister, subject of application reasonable opportunity to present evidence, cross-examine witnesses, make representations — If Minister trying to prove Acheampong, Ekuban same person, respondent has right to produce evidence rebutting allegation — Evidence may be called when determination pursuant to s. 69.3(2) as only way for respondent to rebut new allegations — Denial of natural justice, breach of s. 69.3(2) to not allow respondent to call evidence.
This was an application for leave and judicial review of the decision of the Immigration and Refugee Board, Appeal Division denying the Minister’s application to reconsider and vacate its determination that the respondent was a Convention refugee. In its application, pursuant to Immigration Act, section 69.2, the Minister alleged that the respondent had misled the Board by fraudulent means, misrepresentation, suppression and concealment of material facts in that her Personal Information Form indicated that she had been arrested, detained and mistreated in July 1991 in Ghana. The Minister alleged that Anita Nana Yaa Acheampong and Anita Bonsu Ekuban are, in fact, one and the same person and, as such, Acheampong could not have been arrested, detained and mistreated in Ghana in July 1991 because Ekuban had entered Canada as a foreign student in May 1990. At the hearing before the Refugee Division, the respondent introduced written and oral evidence to support her claim that she and Ekuban were two different people. The Refugee Division held that the respondent had a right to present evidence to rebut the Minister’s assertion of fraud or misrepresentation regarding her identity. The applicant submitted that the vacation Board permitted evidence on the respondent’s identity which went to the core of her Convention refugee claim, when she never mentioned her dual identities at her original hearing.
Although several issues were raised, the principal one was as to whether the Board erred in law, breached the principles of fundamental justice and exceeded its jurisdiction by permitting the introduction of new evidence not considered by the original CRDD panel.
Held, the application should be dismissed.
Subsection 69.3(1) states in part that where an application is made pursuant to section 69.2, the Refugee Division shall conduct a hearing and at that hearing “shall afford the Minister and [the person who is the subject of the application] a reasonable opportunity to present evidence, cross-examine witnesses and make representations”. The respondent has a right to call witnesses and produce evidence to rebut the Minister’s allegation that she is the same person as Ekuban. That is what section 69.3 was designed to allow. It is logical that evidence can be called when a determination is being made pursuant to subsection 69.3(2) because the respondent could not otherwise rebut the Minister’s new allegations. It would be a denial of natural justice and a breach of subsection 69.3(2) not to allow such a respondent to call evidence. The Board did not err in allowing the witnesses to be called and the evidence to be presented.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1 (as enacted by S.C. 1990, c. 8, s. 5).
Federal Court Immigration Rules, 1993, SOR/93-22, ss. 5, 10.
Immigration Act, R.S.C., 1985, c. I-2, ss. 69 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 59), 69.2 (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 61), 69.3 (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 62), 82.1 (as enacted idem, s. 19; S.C. 1992, c. 49, s. 73).
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Bayat v. Canada (Minister of Citizenship and Immigration) (1995), 96 F.T.R. 76 (F.C.T.D.); revd [1999] 4 F.C. 343 (1999), 2 Imm. L.R. (3d) 1; 246 N.R. 185 (C.A.); Guruge v. Canada (Minister of Citizenship and Immigration) (1998), 160 F.T.R. 297; 47 Imm. L.R. (2d) 213 (F.C.T.D.).
APPLICATION for leave and judicial review of the decision of the Immigration and Refugee Board, Appeal Division denying the Minister’s application that it reconsider and vacate its determination that the respondent was a Convention refugee (H. X. V. (Re), [1999] C.R.D.D. No. 301 (QL)). Application dismissed.
APPEARANCES:
Marshall E. Drukarsh for respondent.
Marcel R. Larouche for applicant.
SOLICITORS OF RECORD:
Green & Spiegel, Toronto, for respondent.
Deputy Attorney General of Canada for applicant.
The following are the reasons for order and order rendered in English by
[1] O’Keefe J.: This is a notice of application for leave and judicial review brought pursuant to section 82.1 [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 19; S.C. 1992, c. 49, s. 73] of the Immigration Act, R.S.C., 1985, c. I-2 (the Act) of the decision of the Appeal Division of the Immigration and Refugee Board (the Tribunal), dated November 10, 1999 [[1999] C.R.D.D. No. 301 (QL)]. In its decision, the Refugee Division rejected the Minister’s application to reconsider and vacate its determination of December 17, 1992 that the respondent is a Convention refugee.
[2] The applicant seeks an order in the nature of certiorari quashing the decision of the Tribunal pursuant to section 82.1 of the Act and section 18.1 [as enacted by S.C. 1990, c. 8, s. 5] of the Federal Court Act, R.S.C., 1985, c. F-7, an order directing that the matter be reheard and redetermined by the Appeal Division of the Immigration and Refugee Board with such direction as the Court deems appropriate, and such further and other relief as counsel may advise and the Honourable Court may deem just.
Background Facts
[3] The respondent, Anita Nana Yaa Acheampong (she states she is wrongly named as Anita Bonsu Ekuban in the application) was determined to be a Convention refugee on December 17, 1992. On February 3, 1998, with the consent of the Chairperson of the Immigration and Refugee Board, the Minister made an application to the Refugee Division to reconsider and vacate its determination that the respondent is a Convention refugee.
[4] The Minister alleged the respondent misled the Board by fraudulent means, misrepresentation, suppression and concealment of material facts as follows:
… that in her PIF dated 10 September 1991 she indicated that she was arrested and then mistreated while in detention. As indicated in the reasons of the CRDD, the arrest and detention took place in July 1991. This and further details of this mistreatment are given in exhibit A. Based on the evidence compiled in Exhibit C, the details of her alleged persecution in Ghana in July 1991 are considered to be false. [Exhibit B]
The Minister alleged Anita Nana Yaa Acheampong and Anita Bonsu Ekuban are one and the same person and as such, Acheampong could not have been arrested, detained and mistreated in Ghana in July 1991, given that Ekuban entered Canada as a foreign student in May 1990.
[5] The application was heard before a three-member panel of the Refugee Division on November 8, 1999. At the hearing, the respondent introduced written and oral evidence from witnesses to support her claim that she and Ekuban were two different people. The Refugee Division rejected the Minister’s application on November 16, 1999. Written reasons for the decision were given February 17, 2000 (the cover page on the reasons, however, indicates that the decision was made on November 10, 1999). The following are the relevant portions of the reasons for the purposes of this application [at paragraphs 9, 16 and 22]:
The panel disagrees. The MC is correct that generally new evidence is not admissible on an application to vacate. The purpose of this hearing is certainly not the re-hearing of the original refugee claim. However, it is the respondent’s identity which is being challenged at this hearing, and the respondent has a right to present evidence, both oral and written, to rebut the applicant’s assertion of fraud or misrepresentation regarding her identity. Furthermore, the panel notes that the PIF states that the respondent attended university in Ghana. It is not apparent to the panel, as was submitted by the MC, that the respondent was trying to “conceal” information from the original panel. Furthermore it appears that the PIF was completed in September 1991 without the benefit of counsel.
…
Counsel for the respondent submitted that if the panel has no jurisdiction to hear evidence regarding identify [sic], then the hearing would be an “empty exercise” and moot. The panel agrees. As mentioned above, the panel is of the view that the respondent has a right to present evidence to rebut the applicant’s assertion of fraud or misrepresentation regarding her identity.
…
The panel agrees with counsel for the respondent that the applicant’s case is based principally on speculation. Having considered all the evidence before us, including the identity documents, the various statutory declarations, the sworn testimony of the two witnesses and the respondent, the panel is of the view that the applicant has not established that the respondent is one and the same person as Anita Ekuban. The applicant has not met the onus of establishing that the respondent’s positive determination was obtained by fraudulent means or misrepresentation, suppression or concealment of any material fact, whether exercised or made by that person or any other person.
Applicant’s Submissions
[6] The applicant states the issues as follows:
1. The vacation Board erred in law, breached the principles of fundamental justice and exceeded its jurisdiction by permitting the introduction of new evidence not considered by the original CRDD panel.
2. The vacation Board erred in law in permitting the introduction of witnesses without prior notification to the Minister’s hearing officer.
[7] The applicant submits that the Federal Court of Appeal in Bayat v. Canada (Minister of Citizenship and Immigration), [1999] 4 F.C. 343(Robertson J.A. dissenting) recognized that the jurisdiction of the Board to reconsider a determination that an individual was a Convention refugee includes the jurisdiction to reverse that determination.
[8] The applicant further argues this Court has consistently held that a hearing into the reconsideration and vacation of a determination that an individual is a Convention refugee is not a fresh hearing into his/her claim to Convention refugee status, and is limited to consideration of the evidence that was before the original Board. The decision of Justice Richard (as he then was) in Bayat v. Canada (Minister of Citizenship and Immigration) (1995), 96 F.T.R. 76 (F.C.T.D.); revd [1999] 4 F.C. 343 (C.A.) (Robertson J.A. dissenting) is offered to support the applicant’s position that the “other sufficient evidence” referred to in subsection 69.3(5) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18] of the Act is evidence that was actually before the previous panel. The applicant submits the decision of Justice Richard was not overturned on this point.
[9] Furthermore, the applicant submits the decision of Justice Rothstein (as he then was) in Guruge v. Canada (Minister of Citizenship and Immigration) (1998), 160 F.T.R. 297 (F.C.T.D.) to support the above-mentioned finding in Bayat, supra, that new evidence in support of a Convention refugee determination is not contemplated by subsection 69.3(5) of the Act.
[10] The applicant argues the documentation at the original hearing did not contain much evidence with respect to the respondent’s identity and that the original Board was satisfied as to the respondent’s identity. There was no particular reason to doubt that the respondent was who she said she was at that time.
[11] The vacation Board permitted the introduction of evidence that was not before the original Board and found that the respondent could have been determined to be a Convention refugee. The Board permitted witnesses to testify without sufficient notice to the Minister’s representative. Of greater concern to the applicant is that the vacation Board permitted evidence on the respondent’s identity which went to the core of her Convention refugee claim, when she never mentioned her dual identities at her original hearing. The end result, in the applicant’s submission, is that the Minister in the original Convention refugee determination was precluded from verifying any link between the Ekuban and Acheampong identities, and further inquiries by immigration officials were foreclosed or averted.
[12] The applicant argues that if Ms. Ekuban had been in Canada since May 1990, and if Ekuban and Acheampong are the same person, Acheampong’s claim of difficulties in Ghana subsequent to May 1990 could not possibly be true. By the respondent’s own admission of the use of the Ekuban identity, she showed that she was not in Ghana at material times relevant to her refugee claim. Consequently, the applicant submits this puts into question whether she is truly a Convention refugee. The original Board was entirely precluded from knowing as the respondent deliberately withheld information. The applicant submits the vacation Board’s determination effectively encourages applicants to withhold information in an attempt to conceal their multiple identities, and perhaps conceal their criminal or terrorist activities under another name.
Respondent’s Submissions
[13] The respondent submits the following issues:
A. Is the application a nullity as it fails to identify the decision to be reviewed?
The respondent argues the Minister “seeks leave of the Court to commence an Application for Judicial Review of the decision of the Appeal Division of the Immigration and Refugee Board.” As the respondent’s hearing took place before the CRDD, the applicant is therefore applying for judicial review of a decision which was not made.
B. Is the application a nullity as the remedy requested is not available at law?
The respondent submits the applicant seeks “[a]n order directing that the matter be reheard and redetermined by the Appeal Division of the Immigration and Refugee Board with such further direction as the court deems appropriate.” The only tribunal with authority to hear an application to vacate is the Refugee Division and the Appeal Division of the Immigration and Refugee Board has no jurisdiction to hear a vacation application. Thus, relief which is not available at law is sought by the applicant.
C. Should the application be dismissed for failure to comply with the requirements set out by paragraphs 5(1)(c) and (e) of the Federal Court Immigration Rules, 1993 [SOR/93-22] (the Rules)?
The respondent submits the applicant did not comply with paragraph 5(1)(c) by failing to indicate the name of the tribunal, and by failing to indicate the name of each person who was on the tribunal as the CRDD panel at the vacation hearing was constituted by more than one person. The respondent further submits that by failing to indicate the precise relief to be sought (by requesting a remedy that does not exist), the applicant did not comply with paragraph 5(1)(e).
D. Should the applicant’s application be dismissed for failure to comply with the requirements set out by section 10 of the Rules?
The respondent submits that the applicant failed to comply with Justice Campbell’s order to file a notice of application and application record within 14 days. As well, the respondent states that the applicant was in breach of Rule 10 of the Federal Court Immigration Rules, 1993 as no record was filed.
[14] The respondent argues the vacation hearing was premised on an allegation of misrepresentation. The applicant offered its new evidence in support of its application for vacation in the form of its application record, which was not available to the original panel. The respondent submits that it is for the purposes of this determination that subsection 69.3(1) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18] of the Act establishes that the Refugee Division “shall” afford the Minister “and the person who is subject of the application” a reasonable opportunity to present evidence, cross-examine witnesses and make representations.
[15] The Minister’s representative at the vacation hearing, according to the respondent, acknowledged that the panel was allowed to use the evidence in Exhibit C-1 in order to determine whether there was a misrepresentation, but not for a determination under section 69.3 [as enacted idem; S.C. 1992, c. 49, s. 62] of the Act with respect to the merits of the file.
[16] The respondent submits she did not seek to introduce new evidence so she could be found to be a Convention refugee. She argues that the evidence introduced during the vacation hearing was a direct response to the evidence introduced by the Minister. This evidence was not used to find new grounds for her refugee claim, but used to rebut evidence with regard to her identity.
[17] The respondent argues the decisions of Bayat and Guruge, supra, stand for the proposition that where a misrepresentation has been established in fact, the introduction of new evidence to find new grounds for the Convention refugee claim should not be allowed.
[18] Section 69 [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 59] of the Act and the decisions of Bayat and Guruge, supra, do not and could not, in the respondent’s submission, possibly sanction a blanket prohibition against the introduction of any evidence by the respondent at her vacation hearing. A proper interpretation of the Act and these cases permits the inclusion of new evidence used to rebut the allegations that a respondent misrepresented his or her identity at the original hearing. The respondent submits the CRDD only permitted the introduction of new evidence not considered by the original panel of the Immigration Refugee Board for these purposes.
Issues
[19] The following are the issues:
1. What standard of review should be applied?
2. Is the application a nullity as it fails to identify the decision to be reviewed?
3. Is the application a nullity as the remedy requested is not available at law?
4. Should the application be dismissed for failure to comply with the requirements set out by paragraphs 5(1)(c) and (e) of the Federal Court Immigration Rules, 1993?
5. Should the application be dismissed for failure to comply with the requirements set out by Rule 10 of the Federal Court Immigration Rules, 1993?
6. The vacation Board erred in law in permitting the introduction of witnesses without prior notification to the Minister’s hearing officer.
7. The vacation Board erred in law, breached the principles of fundamental justice and exceeded its jurisdiction by permitting the introduction of new evidence not considered by the original CRDD panel.
Relevant Statutory Provisions
[20] The relevant sections of the Immigration Act state [section 69.2 (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 61)]:
69.2 (1) The Minister may make an application to the Refugee Division for a determination whether any person who was determined under this Act or the regulations to be a Convention refugee has ceased to be a Convention refugee.
(2) The Minister may, with leave of the Chairperson, make an application to the Refugee Division to reconsider and vacate any determination made under this Act or the regulations that a person is a Convention refugee on the ground that the determination was obtained by fraudulent means or misrepresentation, suppression or concealment of any material fact, whether exercised or made by that person or any other person.
(3) An application to the Chairperson for leave to apply to the Refugee Division under subsection (2) shall be made ex parte and in writing and the Chairperson may grant that leave if the Chairperson is satisfied that evidence exists that, if it had been known to the Refugee Division, could have resulted in a different determination.
(4) An application to the Refugee Division under this section shall be instituted by filing, in the manner and form prescribed by the rules of the Board, a notice of application with the Refugee Division.
(5) Where a notice of application is filed with the Refugee Division pursuant to subsection (4), the Minister shall forthwith send a copy of the notice to the person who is the subject of the application.
69.3 (1) Where an application to the Refugee Division is made under section 69.2, the Refugee Division shall conduct a hearing into the application, after having notified the Minister and the person who is the subject of the application of the time and place set for the hearing, and shall afford the Minister and that person a reasonable opportunity to present evidence, cross-examine witnesses and make representations.
(2) If the Minister’s counsel or agent fails to appear at the time and place set by the Refugee Division for the hearing into the application or, in the opinion of the Division, is otherwise in default in the prosecution of the application, the Division may, after giving the Minister a reasonable opportunity to be heard, declare the application to have been abandoned.
(3) Three members constitute a quorum of the Refugee Division for the purposes of a hearing under this section.
(4) The Refugee Division shall approve or reject the application and shall render its decision as soon as possible after completion of the hearing and send a written notice of the decision to the Minister and the person who is the subject of the application.
(5) The Refugee Division may reject an application under subsection 69.2(2) that is otherwise established if it is of the opinion that, notwithstanding that the determination was obtained by fraudulent means or misrepresentation, suppression or concealment of any material fact, there was other sufficient evidence on which the determination was or could have been based.
(6) In the event of a split decision, the decision of the majority of the members hearing the application shall be deemed to be the decision of the Refugee Division.
(7) The Refugee Division may give written reasons for its decision on an application, except that
(a) if the decision is against the person who is the subject of the application, the Division shall, with the written notice of the decision referred to in subsection (4), give written reasons with the decision; and
(b) if the Minister or the person who is the subject of the application requests written reasons within ten days after the day on which the Minister or person is notified of the decision, the Division shall forthwith give written reasons.
[21] The relevant sections of the Federal Court Immigration Rules, 1993 state:
5. (1) An application shall be in accordance with Form IR-1 as set out in the schedule and shall set out
(a) the full names of the parties;
(b) the date and details of the decision, order or other matter in respect of which relief is sought;
(c) the name of the tribunal and, if the tribunal was composed of more than one person, the name of each person who was on the tribunal;
(d) the tribunal’s file number, if any;
(e) the precise relief to be sought on the application for judicial review;
(f) the grounds on which the relief is sought, including a reference to any statutory provision or Rule to be relied on;
(g) the proposed place and language of the hearing of the application for judicial review;
(h) whether or not the applicant has received the written reasons of the tribunal; and
(i) the signature, name, address and telephone number of the individual solicitor filing the application, or where the applicant acts in person, his or her signature, name, address for service in Canada, and telephone number.
(2) Unless the Minister is the applicant, the Minister shall be a respondent in an application.
…
10. (1) The applicant shall perfect an application for leave by complying with subrule (2)
(a) where the application sets out that the applicant has received the tribunal’s written reasons, within 30 days after filing the application; or
(b) where the application sets out that the applicant has not received the tribunal’s written reasons, within 30 days after receiving either the written reasons, or the notice under paragraph 9(2)(b), as the case may be.
(2) The applicant shall serve on every respondent who has filed and served a notice of appearance, a record containing the following, on consecutively numbered pages, and in the following order
(a) the application for leave,
(b) the decision or order, if any, in respect of which the application is made,
(c) the written reasons given by the tribunal, or the notice under paragraph 9(2)(b), as the case may be,
(d) one or more supporting affidavits verifying the facts relied on by the applicant in support of the application, and
(e) a memorandum of argument which shall set out concise written submissions of the facts and law relied upon by the applicant for the relief proposed should leave be granted,
and file it, together with proof of service.
[22] Issue 1
What standard of review should be applied?
I am of the opinion that decisions of the Immigration and Refugee Board (Refugee Division) should be reviewed on a standard of reasonableness simpliciter except where questions of law are being decided and then the standard is correctness.
[23] Issue 2
Is the application a nullity as it fails to identify the decision to be reviewed?
The application states that the decision to be reviewed is the November 16, 1999 decision of the Appeal Division of the Immigration and Refugee Board when in fact, it should have been the November 16, 1999 decision of the Convention Refugee Determination Division of the Immigration and Refugee Board. As the decision was identified by date I am not prepared to rule that the application is a nullity.
[24] Issue 3
Is the application a nullity as the remedy requested is not available at law?
The application is not a nullity because one of the heads of relief as pleaded cannot be granted. The Court could simply refuse to grant that relief or could allow the applicant to correct the name of the tribunal.
[25] Issue 4
Should the application be dismissed for failure to comply with the requirements set out by paragraphs 5(1)(c) and (e) of the Federal Court Immigration Rules, 1993?
Although the applicant failed to comply with paragraphs 5(1)(c) and (e), this is not fatal to the application. The names of the tribunal and its members would be on the decision when reviewed.
[26] Issue 5
Should the application be dismissed for failure to comply with the requirements set out by Rule 10 of the Federal Court Immigration Rules, 1993?
A perusal of the file indicates the presence of affidavits of service showing that Rule 10 was complied with.
[27] Issue 6
The vacation Board erred in law in permitting the introduction of witnesses without prior notification to the Minister’s hearing officer.
I am of the opinion that the vacation Board did not err in law in permitting the introduction of witnesses without prior notification to the Minister’s hearing officer. If the applicant was caught by surprise, then she could have asked for an adjournment.
[28] Issue 7
The vacation Board erred in law, breached the principles of fundamental justice and exceeded its jurisdiction by permitting the introduction of new evidence not considered by the original CRDD panel.
The Minister has made this application to reconsider and vacate the refugee status of the respondent pursuant to section 69.2 of the Act. The application under section 69.2 invokes the operation of subsection 69.3(1) of the Act and this section states in part that the Refugee Division shall conduct a hearing and at that hearing “shall afford the Minister and that person a reasonable opportunity to present evidence, cross-examine witnesses and make representations.”
[29] In the present case, the Minister has alleged before the vacation Board that Anita Nana Yaa Acheampong and Anita Bonsu Ekuban are one and the same person. If this was accepted by the Board as being true, the respondent Acheampong would likely lose her refugee status as her PIF narrative could no longer be true.
[30] Surely if the Minister is trying to prove Acheampong and Ekuban are the same person, then the respondent Acheampong has a right to call witnesses and produce evidence to rebut this allegation. That is exactly what section 69.3 is designed to allow her to do. I would therefore hold that the vacation Board was correct in allowing the witnesses to be called and the evidence to be presented.
[31] The applicant urged upon me the decisions in Bayat, supra, reversed by the Federal Court of Appeal [1999] 4 F.C. 343 and Guruge, supra. In both the Bayat and Guruge decisions, the respondents agreed with the Minister’s statements that they had, in the Bayat (T.D.) case [at paragraph 2], “entered Canada under false identities and that their true identities and dates of birth were different from those provided to the visa officer” and in the Guruge case [at paragraph 1], that she “had misrepresented her identity and where she had been living”. In these cases, the Minister did not have to prove the misrepresentations and the courts were dealing with whether new evidence could be called in a determination under subsection 69.3(5) of the Act. The courts ruled that new evidence could not be called in a determination under subsection 69.3(5) of the Act. The courts were not dealing with a determination pursuant to subsection 69.3(2) of the Act where, in my opinion, evidence can be called. It is only logical that evidence can be called when a determination is being made pursuant to subsection 69.3(2) because how else could the respondent rebut these new allegations. It would be a denial of natural justice not to allow such a respondent to call evidence and a breach of subsection 69.3(2) of the Act.
[32] I am of the opinion that the decision of the vacation Board was well reasoned and a correct decision.
[33] The application for judicial review is dismissed. In my opinion, the circumstances of the case do not support an award of costs to the respondent.
ORDER
[34] It is ordered that the application for judicial review is dismissed.
[35] And it is ordered that there shall be no award of costs to the respondent.