IMM-1367-02
2002 FCT 1259
Iraj Rezaei (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
and
The Immigration and Refugee Board (Intervener)
Indexed as: Rezaei v. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Beaudry J.--Vancouver, November 6; Ottawa, December 5, 2002.
Citizenship and Immigration -- Immigration Practice -- Immigration consultant banned by Assistant Deputy Chairperson (ADC) from appearing before IRB -- ADC delegated responsibility by IRB Chairperson to investigate consultant, take remedial action as necessary when concerns arose as to consultant's conduct -- Consultant advised as to particulars of alleged misconduct but not complainants' names -- Consultant advised of findings of fact, proposed sanctions -- Following correspondence, hearing, ADC refused to reopen factual findings, indicated discipline imposed -- Judicial review application rejected -- Argued that Board lacking jurisdiction to impose general ban, could only ban in particular case -- Question of applicant's capacity to act before IRB is procedural matter -- At hearing, only substantive rights those of parties: claimant, MCI -- S.C.C. decision in Prassad v. Canada (Minister of Employment and Immigration) given broad judicial treatment, not distinguishable -- Tribunals empowered to control own procedures -- Impugned decision did not have to be made by Chairperson -- Denying IRB jurisdiction to ensure integrity of process disservice to stakeholders: claimants, Canadian public -- Delays, disruptions ensuing if applicant banned from specific hearings only -- Applicant afforded adequate disclosure, not denied fair hearing -- Names of complainants ascertainable from own files -- Non-disclosure complaint untimely.
Administrative Law -- Judicial Review -- Certiorari -- Assistant Deputy Chairperson (ADC) of Immigration and Refugee Board's Appeal Division refusing to reopen decision banning immigration consultant from practice before IRB -- Whether Board having jurisdiction to impose blanket practice ban -- Whether procedural fairness rules observed -- Right to practice before Board is procedural matter, within Board's competence -- Power not improperly delegated to ADC by Board Chairperson -- S.C.C. decision in Prassad v. Canada (Minister of Employment and Immigration) given broad application in case law, administrative tribunals, in procedural matters, masters in own house -- IRB may impose general ban if thought necessary to preserve integrity of tribunal process -- No breach of procedural fairness herein -- Unnecessary to disclose claimants' names as same revealed by search of consultant's own files -- Not denied fair oral hearing.
This was an application for judicial review of the decision of the Assistant Deputy Chairperson (ADC) of the Immigration Appeal Division refusing to reopen factual findings concerning the practice before the Immigration and Refugee Board (IRB) of applicant, Iraj Rezaei, an immigration consultant. Rouleau J. granted the IRB intervener status on the jurisdictional issue: whether the ADC had jurisdiction to rule that applicant could not practice before the Convention Refugee Determination Division (CRDD) and to discipline applicant under a power delegated by the Chairperson. There was also an issue as to procedural fairness.
The applicant, a non-lawyer, acts for clients before the CRDD of the IRB and in late 2000 concerns began to arise regarding his conduct. Independently of the IRB investigation, applicant was charged with four counts of an offence against section 94.1 of the Immigration Act: attempting to organize entry to Canada by persons with false Canadian visas. His convictions, on all counts, were overturned upon appeal. The IRB Chairperson delegated to the ADC authority to investigate Rezaei and to take any remedial actions regarded as necessary to protect the integrity of CRDD proceedings. The ADC then wrote to Rezaei detailing his alleged misconducts, setting out particulars, dates and file numbers. The ADC later wrote again to Rezaei, with a copy to counsel, outlining her findings of fact and proposed sanctions. Counsel replied, providing letters from satisfied clients and suggesting that a three-year ban was excessive by comparison with the suspensions imposed upon lawyers in disciplinary matters. In another letter, counsel again sought further and better particulars to which the ADC replied, stating that it was up to applicant to notify the IRB by whom he was represented in the current proceedings, an earlier Rule 39 Conference being considered a separate proceeding. Counsel then moved before the CRDD, seeking a declaration that either the Rule 39 Conference or the ADC's administrative inquiry be deemed abandoned as they were duplicate processes. Also sought were complainants' names along with a declaration that the Chairperson or his delegate lacked jurisdiction to suspend a consultant from practicing before the IRB. Following a hearing, attended by applicant and counsel, the ADC refused to reopen her factual findings and indicated that the discipline would be imposed. She found that adequate notice had been given as to the fact-finding proceedings and that procedural fairness requirements had been met. The submission, that a reasonable apprehension of bias resulted from her roles as "investigator, accuser and trier of fact", was rejected, the ADC taking the position that her only role had been as trier of facts. She denied involvement in the gathering of evidence.
Held, the application should be dismissed, counsel being allowed seven days from receipt of these reasons to serve and file submissions on certification.
Before this Court, it was argued on applicant's behalf that the powers of administrative officers are limited to those conferred upon them by statute. It was urged that there is no jurisdiction at large to ban someone from appearing before the CRDD; such an order can be made only with respect to a particular case. Furthermore, the Chairperson could not delegate his subsection 65(1) rule-making power. The Minister's argument was that applicant had failed to advance a principled basis for the proposition that the IRB cannot generally exclude someone from appearing if he has consistently demonstrated a disregard for the Board and the integrity of its process. The Board, as intervener, adopted the Minister's argument, that a tribunal, such as the IRB, is the master of its own procedure and must ensure the integrity and fairness of the hearing process.
Applicant was incorrect in suggesting that the question of his capacity to act before the Board was not a procedural matter since it affected his substantive rights. At a hearing, the only substantive rights at issue are those of the parties: claimant and the Minister. Applicant sought to distinguish the decision of the Supreme Court of Canada in Prassad v. Canada (Minister of Employment and Immigration), arguing that it stood only for the proposition that an adjournment is within an adjudicator's discretion. But the precedential value of that case could not be so limited, given the broad judicial treatment it has since received. In Prassad, Sopinka J. stated that as "a general rule, these tribunals are considered to be masters in their own house. In the absence of specific rules laid down by statute or regulation, they control their own procedures subject to the proviso that they comply with the rules of fairness, and, where they exercise judicial or quasi-judicial functions, the rules of natural justice". There is no statutory provision or regulation limiting the ability of the ADC to suspend anyone from appearing before the IRB. The impugned decision was not one that could be made only by the Board Chairperson. The ADC did not have to adhere to some rigid procedure in making this decision. She obeyed the rules of fairness and natural justice and that is all that was required. The ADC had not acted without regard to the particular circumstances concerning applicant. A denial that the IRB has jurisdiction to ensure the integrity of its processes would be a disservice to its stakeholders, including claimants and the Canadian public. The Board is not limited to banning applicant on a case-by-case basis if of the view that a broader ban is necessary to preserve the integrity of its process as a tribunal. To ban applicant from specific hearings only would result in frequent disruptions of its process due to claimants having to seek adjournments to secure new representatives and delay in terms of the time taken in members advising applicant he will not be heard.
As to procedural fairness, applicant says that he was not told the names of individual complainants and was given but brief summaries of the allegations. The rules of disclosure established by the Supreme Court in Stinchcombe have been held to apply to the CRDD. He suggested that the IRB had a positive duty to disclose all documentation it might rely upon to impeach him, which duty had not been met. He further submitted that the procedure followed herein violated his right to a fair hearing. The Minister countered by asserting that applicant had been advised in writing, in very specific terms, of the IRB's concerns but did not bother to respond until after the decision was rendered and was thus the author of his own misfortune.
Applicant was provided with adequate disclosure and not denied a fair oral hearing. The faults regarding disclosure that resulted in a successful judicial review application in the Federal Court Trial Division in Nrecaj v. Canada (Minister of Employment and Immigration) were not here present. Applicant could have figured out the complainants' names by a careful search of his own files. Furthermore, applicant's complaints regarding non-disclosure were not advanced in a timely manner. The merits of this application would have been better served had he sought disclosure prior to the ADC rendering her decision instead of waiting to denounce the non-disclosure in Federal Court.
statutes and regulations judicially
considered
Convention Refugee Determination Division Rules, SOR/93-45, rr. 28, 39, 40.
| Immigration Act, R.S.C., 1985, c. I-2, ss. 58(4) (as am. by S.C. 1992, c. 49, s. 48), 65(1) (as am. idem, s. 55), 82.1 (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 19; S.C. 1992, c. 49, s. 73), 94.1 (as enacted by R.S.C., 1985 (4th Supp.), c. 29, s. 9; S.C. 1992, c. 49, s. 84). |
cases judicially considered
followed:
Prassad v. Canada (Minister of Employment and Immigration), [1989] 1 S.C.R. 560; (1989), 57 D.L.R. (4th) 663; [1989] 3 W.W.R. 289; 36 Admin. L.R. 72; 7 Imm. L.R. (2d) 253; 93 N.R. 81; Law Society of British Columbia v. Mangat (1998), 167 D.L.R. (4th) 723; [1999] 6 W.W.R. 588; 115 B.C.A.C. 50; 58 B.C.L.R. (3d) 280; 48 Imm. L.R. (2d) 170 (B.C.C.A.); affd [2001] 3 S.C.R. 113; (2001), 205 D.L.R. (4th) 577; [2002] 2 W.W.R. 201; 157 B.C.A.C. 161; 96 B.C.L.R. (3d) 1; 16 Imm. L.R. (3d) 1; 276 N.R. 339.
applied:
R. v. Romanowicz (1999), 45 O.R. (3d) 506; 178 D.L.R. (4th) 466; 138 C.C.C. (3d) 225; 26 C.R. (5th) 246; 45 M.V.R. (3d) 294; 124 O.A.C. 100 (C.A.); Chong v. Canada (Attorney General) (1995), 104 F.T.R. 253 (F.C.T.D.).
distinguished:
Nrecaj v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 630; (1993), 14 Admin. L.R. (2d) 161; 65 F.T.R. 171; 20 Imm. L.R. (2d) 252 (T.D.).
referred to:
R. v. Lemonides (1997), 35 O.R. (3d) 611; 151 D.L.R. (4th) 546; 10 C.R. (5th) 135; 35 O.T.C. 23 (Gen. Div.); Canada (Attorney General) v. Canada (Commissioner of the Inquiry on the Blood System), [1996] 2 F.C. 668; (1996), 133 D.L.R. (4th) 565; 37 Admin. L.R. (2d) 241; 109 F.T.R. 96 (T.D.); R. v. Stinchcombe, [1991] 3 S.C.R. 326; (1991), 120 A.R. 161; [1992] 1 W.W.R. 97; 83 Alta. L.R. (2d) 93; 68 C.C.C. (3d) 1; 8 C.R. (4th) 277; 130 N.R. 277; 8 W.A.C. 161.
authors cited
Canada. Parliament. House of Commons. Standing Committee on Citizenship and Immigration. Immigration Consultants: It's Time to Act: Ninth Report of the Standing Committee on Citizenship and Immigration. Ottawa: Queen's Printer, 1995 (Chairperson: Eleni Bakopanos).
APPLICATION for judicial review of the decision of the Assistant Deputy Chairperson of the Immigration Appeal Division of the Immigration and Refugee Board banning an immigration consultant from practice before the Board. Application dismissed and question certified for consideration by the Federal Court of Appeal.
appearances:
Robert J. Kincaid for applicant.
Brenda Carbonell for respondent.
Joseph J. Arvay, Q.C. and Mark G. Underhill for intervener.
solicitors of record:
Robert J. Kincaid Law Corporation, Vancouver, for applicant.
Deputy Attorney General of Canada for respondent.
Arvay Finlay, Victoria, for intervener.
The following are the reasons for order rendered in English by
[1]Beaudry J.: This is an application for judicial review of a decision of the Immigration and Refugee Board (IRB), 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). The applicant seeks judicial review of a decision by Sherry Wiebe, Assistant Deputy Chairperson (ADC) of the Immigration Appeal Division (IAD), to refuse to reopen factual findings made with respect to the practice of the applicant before the IRB. The applicant seeks, among other relief, the quashing of her decision.
[2]The IRB obtained intervener status by order of Rouleau J., dated October 25, 2002, on the jurisdictional issue only.
ISSUES
Jurisdictional Issue
[3]Did the ADC err in its conclusion that she had jurisdiction to determine that the applicant could not practice before the Convention Refugee Determination Division (CRDD), and that she had the jurisdiction to discipline the applicant for alleged complaints pursuant to power delegated from the Chairperson?
Procedural Fairness Issue
[4]Did the ADC commit breaches of natural justice?
[5]For the following reasons, the judicial review shall be dismissed.
BACKGROUND
[6]The applicant acts as an immigration consultant, representing clients before the IRB, particularly before the Convention Refugee Determination Division (CRDD) of the IRB. He is not a member of the Bar and does not purport to be a member. He acts as a non-lawyer representative on behalf of clients.
[7]Beginning in late 2000, concerns began to arise with respect to the conduct of the applicant before the IRB. Independently of the investigation of the IRB into the conduct of the applicant, the applicant was charged with four counts of attempting to organize the coming into Canada of certain persons by use of false Canadian visas, an offence under section 94.1 [as enacted by R.S.C., 1985 (4th Supp.), c. 29, s. 9; S.C. 1992, c. 49, s. 84] of the Act. He was convicted, but the convictions on all counts were subsequently overturned on appeal.
[8]On March 8, 2001, Peter Showler, Chairperson of the IRB (Chairperson), notified the applicant that the IRB had concerns regarding his practice, and that the ADC was being delegated the authority to investigate this matter:
In my capacity as Chairperson . . ., I have delegated to Ms. Sherry Wiebe, Assistant Deputy Chairperson of the Immigration Appeal Division in Vancouver, my authority to find facts and take any remedial actions with respect to your practice before the Board that she may regard as necessary to safeguard and protect the integrity and effectiveness of [CRDD] proceedings.
[9]The ADC followed up on this with a letter of her own dated March 21, 2001. In this letter, she enumerated files on which the applicant worked. The applicant was alleged to have engaged in acts or omissions constituting misconduct in connection with those files. Particulars of these allegations were indicated by file number and the date of the alleged act or omission.
[10]On July 23, 2001, counsel for the applicant wrote to the Chairperson, with a copy to the ADC. In his letter, he acknowledged the March 8 letter, indicated that the convictions against the applicant were under appeal at the time, and denounced defamatory conduct in which IRB staff were alleged to have engaged with respect to the applicant.
[11]On August 2, 2001, the ADC addressed to the applicant, with a copy to counsel for the applicant, a letter outlining her findings of fact with respect to the alleged acts or omissions. She concluded the letter by stating the remedial sanctions that she proposed, and invited the applicant to respond by August 20, 2001.
[12]Counsel for the applicant responded to the ADC on August 9, 2001, with a preliminary reply addressing some of the jurisdictional and procedural concerns that the applicant has brought to the judicial review application before me.
[13]Further submissions by counsel for the applicant were made in a letter dated August 17, 2001, which he sent to the ADC. Under cover of that letter were several letters purported to be letters of reference from satisfied clients of the applicant or others in his community who could speak to his qualifications or character. Counsel for the applicant also enclosed two examples of disciplinary decisions released by the Law Society of British Columbia in support of the argument that the proposed three-year ban against the applicant from appearing before the IRB was unduly long in light of the suspensions handed down to members of the Bar for disciplinary infractions. Counsel also requested disclosure of information that would help him to understand the conduct which is the subject of the complaint and the identity of those behind the complaints.
[14]On October 3, 2001, counsel for the applicant reiterated his request for particulars of the conduct alleged against him. Counsel indicated that without such particulars, the applicant could not reply as requested.
[15]On October 11, 2001, the ADC replied, stating that although counsel represented the applicant in proceedings known as a Rule 39 Conference at an earlier time, the current factual determination process was a separate proceeding. It was the responsibility of the applicant to notify the IRB of his representation in these proceedings.
[16]On October 25, 2001, counsel served the following on the Refugee Claims Officer (RCO), CRDD: a notice of motion, the affidavit of the applicant and a written summary of facts and law. The motion sought relief pursuant to rules 28, 39 and 40 of the Convention Refugee Determination Division Rules [SOR/93-45] (the Rules).
[17]Among the relief sought before the CRDD was a declaration that either the Rule 39 Conference alluded to above or the administrative inquiry of the ADC be deemed abandoned or withdrawn because they were duplicate processes. The applicant also sought disclosure of the names of the complainants whose complaints were mentioned in the March 21 letter, as well as prior correspondence referred to in the October 3 letter.
[18]The applicant also wanted a declaration that the Chairperson and his delegate do not have the jurisdiction to suspend or deny a consultant the ability to practice before the IRB. The applicant also sought a declaration that if such jurisdiction exists, the ADC lost that jurisdiction due to violations of procedural fairness.
CONTESTED DECISION
[19]Following a hearing held December 4, 2001, at which the applicant and his counsel were present before the ADC, the ADC issued a decision on March 14, 2002. In her decision, she expressed her refusal to reopen the factual findings that had been made against the applicant, and expressed her intention to exercise the proposed disciplinary action.
[20]The ADC found that the CRDD had the jurisdiction to exclude anyone from appearing before it on behalf of claimants. It was not necessary to await specific hearings to exclude representatives on a case-by-case basis.
[21]Procedural fairness and natural justice were discussed on two fronts. One was the adequacy of the notice of the proceedings given to the applicant and the other was the apprehension of bias.
[22]The ADC found that adequate notice was given to the applicant of the proceedings by which factual findings were being made and the date by which he was to respond. The ADC found that his explanations for his failure to respond were unacceptable, and that adequate notice was given. It could therefore not be said on this basis that procedural fairness was lacking.
[23]The ADC rejected the argument that there would be a reasonable apprehension of bias by virtue of her being "investigator, accuser and trier of fact" (decision of the ADC, March 14, 2002, page 13). The ADC ruled that her only role was the trier of facts, and that she was not involved in any aspect of the gathering of evidence. Concerns were brought to the attention of the CRDD and she had been delegated the responsibility for this proceeding and provided supporting materials. Roles were therefore divided in a way that alleviated any reasonable apprehension of bias.
[24]The applicant was given an opportunity to respond before the deadline imposed by the ADC. If he desired an oral hearing at which he could confront and cross-examine his accusers, he had ample opportunity to do so by making requests of that nature before the deadline to respond. His failure to respond to the initial letters of March 2001 in a timely manner was responsible for any procedural gaps he now alleges.
[25]The ADC concluded on the above basis that the factual findings were carried out in a procedurally fair manner and within the jurisdiction of the CRDD. The motion to reopen the factual findings was therefore denied.
RELEVANT RULES AND STATUTORY PROVISIONS
[26]Rule 28 allows motions which are not otherwise contemplated in the Rules to be raised:
28. (1) Every application that is not provided for in these Rules shall be made by a party to the Refugee Division by motion, unless, where the application is made during a hearing, the members decide that, in the interests of justice, the application should be dealt with in some other manner.
(2) The motion shall consist of
(a) a notice specifying the grounds on which the motion is made;
(b) an affidavit setting out the facts on which the motion is based; and
(c) a concise statement of the law and of the arguments that are relied on by the applicant.
[27]The remaining subsections in rule 28, subsections (3) through (9), provide additional rules governing such motions whose reproduction here is not necessary. Rules 39 and 40 are general "catch-all" provisions for the Rules:
39. These Rules are not exhaustive and, where any matter that is not provided for in these Rules arises in the course of any proceeding, the Refugee Division may take whatever measures are necessary to provide for a full and proper hearing and to dispose of the matter expeditiously.
40. Where a party or a refugee hearing officer does not comply with a requirement of these Rules, the Refugee Division, on application made by the party or refugee hearing officer in accordance with rule 27, may permit the party or refugee hearing officer to remedy the non-compliance or may waive the requirement, where it is satisfied that no injustice is thereby likely to be caused to any party or the proceeding will not be unreasonably impeded.
[28]The applicant cites subsection 65(1) [as am. by S.C. 1992, c. 49, s. 55] of the Act and submits that this provision does not allow the Chairperson to delegate rule-making authority. The provision reads as follows:
65. (1) Subject to the approval of the Governor in Council, the Chairperson, in consultation with the Deputy Chairperson (Convention Refugee Determination Division), the Deputy Chairperson (Immigration Appeal Division) and the Director General (Adjudication Division) may make rules
(a) governing the activities of, and the practice and procedure in, the Refugee Division, the Appeal Division and the Adjudication Division, including the functions of counsel employed by the Board;
(b) prescribing a system of priorities for dealing with matters before the Refugee Division, Appeal Division or Adjudication Division;
(c) prescribing the information that may be required under subsection 46.03(2) and the manner and the time within which it must be provided;
(d) governing the determination under subsection 69.1(7.1) of claims of persons who claim to be Convention refugees; and
(e) prescribing any matter that is authorized by this Act to be prescribed by the rules.
SUBMISSIONS
Jurisdiction--Applicant
[29]Powers of administrative officers are defined by the statute creating their office and must be found in that statute expressly or by necessary implication. There is no jurisdiction at large to prevent someone from appearing before the CRDD; such an order can only be made in the context of a particular case. In addition, the Chairperson cannot delegate the power to make rules under subsection 65(1) of the Act governing the practice and procedure of the IRB.
[30]Prassad v. Canada (Minister of Employment and Immigration), [1989] 1 S.C.R. 560 was invoked by the ADC in support of a finding that the CRDD is the master of its own procedure. However, Prassad, supra, itself held only that the adjournment of proceedings is in the discretion of the adjudicator. In addition, there are limitations, including the Constitution and natural justice, affecting the authority of an agency to determine its procedure.
[31]R. v. Lemonides (1997), 35 O.R. (3d) 611 (Gen. Div.) involved the power of agents to appear in summary conviction matters before criminal courts. Contrary to what the decision of the ADC suggests, Lemonides, supra did not state that the issue of whether a specific person could be barred from appearing before a court was simply a matter of procedure. Such a matter would have to be considered in each case before the court.
[32]Overall, a decision regarding who can appear before a board or tribunal is not a simple matter of procedure. It is a quasi-judicial decision, as it is a binding decision which affects the substantive rights of an individual. The ADC therefore misinterpreted the nature of the decision.
Jurisdiction--Respondent
[33]The applicant has not provided a principled basis for asserting that the IRB cannot generally exclude a representative from appearing before it where that representative has consistently demonstrated a disregard for the IRB and the integrity of its process.
[34]It is trite law that a tribunal is the master of its own procedure and has an obligation to ensure the integrity and fairness of the hearing process. The applicant has not adequately provided authority for his own position in this regard. Mere assertions do not constitute a reasonably arguable case.
[35]The respondent cites Law Society of British Columbia v. Mangat (1998), 167 D.L.R. (4th) 723 (B.C.C.A.); affd [2001] 3 S.C.R. 113; Prassad; and R. v. Romanowicz (1999), 45 O.R. (3d) 506 (C.A.).
[36]The respondent also argues that the IRB has an implicit jurisdiction to maintain its dignity and respect.
[37]The respondent asserts that to adopt the applicant's arguments would make no practical sense, and that it would be an abuse of process if each board member would have to deal with incompetence case by case.
[38]The delegation of power from the Chairperson to ADC is legal.
Jurisdiction--Intervener
[39]The intervener adopts the respondent's argument that the IRB is the master of its own procedure and can control the process.
[40]The IRB has the authority to examine the conduct of a person to ensure the integrity of the IRB also because an agent can appear on all divisions of the IRB. The best way to do so is to delegate its power to the ADC as was done in the case at bar.
[41]It is not necessary to have a statutory provision because it is in the inherent jurisdiction of the IRB to do what it did.
Procedural Fairness
Applicant
[42]Several principles of natural justice were outlined in Canada (Attorney General) v. Canada (Commissioner of the Inquiry on the Blood System), [1996] 2 F.C. 668 (T.D.). The applicant was never provided with the names of individual complainants; he was only given brief summaries of the allegations against him.
[43]The principles of disclosure set out in R. v. Stinchcombe, [1991] 3 S.C.R. 326 were confirmed in Nrecaj v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 630 (T.D.) as applying to the IRB and, in particular, to the CRDD. The IRB has a positive duty to disclose all documentation that it will or may use to impeach the applicant or that forms the basis of the complaint. This duty was not met.
[44]The factors which, according to judicial precedents, suggest that an oral hearing is a necessary element of procedural fairness, are present in this case. The procedure adopted by the Tribunal in the March 21, 2001 letter violated the right of the applicant to a fair hearing. His right to full answer and defence was limited to an opportunity to respond to written summaries of what was alleged against him. It was not a necessary condition that he request that the proper elements of fundamental justice be applied.
[45]It is also a breach of natural justice to rely on evidence from other proceedings. By noting what complainants stated in their own hearings and invoking those statements in the letter to the applicant, the ADC committed such a breach.
[46]The IRB indicated in one of its communications that it would be in touch with counsel regarding a matter originally scheduled for November 2000, then subsequently cancelled it. The IRB breached this undertaking, and cannot now simply say that this is a new proceeding and that it cannot guess who the applicant would retain as counsel. The IRB is bound by its undertakings.
Respondent
[47]The arguments with respect to natural justice are without foundation in law or fact. The applicant was advised in writing in very specific terms of the concerns of the IRB and the information on which the ADC would be relying in its fact finding. The applicant made no effort to respond until after a decision was rendered. The ADC did not breach the principles of natural justice; rather, this is a case of the applicant being derelict in looking after his interests. The applicant is the "author of his own misfortune in this matter". The application should be dismissed.
ANALYSIS
[48]It clearly makes intuitive sense that a tribunal such as the IRB or any of its constituent divisions ought to be able to regulate its own procedure. It ought also to regulate the privilege of appearing before the tribunal to represent a claimant.
[49]With all due respect to the submissions by the counsel for the applicant, it cannot be said that the question of capacity to serve as a representative of a claimant is not procedural because it affects the substantive rights of the person who is seeking to act as counsel. During the course of a particular hearing, the only substantive rights with which the tribunal is concerned are those of the parties; that is, the claimant and the Minister. To the extent that representation by counsel affects the procedure by which the substantive rights at the heart of the case are determined, that matter is procedural and is therefore within the competence of the IRB.
[50]In its submissions, the IRB submitted that it had the jurisdiction, as master of its own procedure, to bar counsel appearing before the IRB. This particular power, the IRB submitted, was part of its general power to protect the integrity of its process.
[51]The IRB cited Prassad in support of its submission that a tribunal has control of its own procedural rules. It submits that despite the absence of any specific authority, it can exclude a person from appearing as counsel if that is necessary in order to maintain the integrity of its process.
[52]In exercising the power to control its process, the IRB must judicially exercise its power on the basis of the circumstances present in a given case. The IRB submits that it has done so here. To the extent that the protection of the integrity of the processes the IRB requires a more general ban, it submits that it has the power to impose such a sanction, and need not wait for specific hearings to ban the applicant at those hearings. To do so would be highly disruptive.
[53]The Chairperson may delegate any of his powers or functions, with certain exceptions. One of those exceptions is the power to make rules under subsection 65(1). The authority for the power to delegate is found in subsection 58(4) [as am. by S.C. 1992, c. 49, s. 48] of the Act:
58. . . .
(4) The Chairperson may authorize any Deputy Chairperson or Assistant Deputy Chairperson of the Refugee Division or Appeal Division and any coordinating member of the Refugee Division to exercise any power or perform any duty or function of the Chairperson under this Act, other than
(a) the power to make rules under subsection 65(1),
(b) any power, duty or function in relation to the Adjudication Division, or
(c) the power to delegate under this subsection,
and, if so exercised or performed, the power, duty or function shall be deemed to have been exercised or performed by the Chairperson.
[54]Two issues are discussed below: whether the natural justice obligations of the IRB were fulfilled and whether the IRB has the jurisdiction to take the course of action that it took in this instance.
Procedural Fairness
[55]I cannot accept the submissions of the applicant that he was not provided with adequate disclosure or that he was unduly denied an opportunity for a full and fair oral hearing. The faults with respect to disclosure that led to a successful judicial review application in Nrecaj, supra are not present here.
[56]The applicant was given clear indication regarding the complaints against him. The information provided by the ADC included particulars with respect to file numbers and hearing dates in connection with which questionable conduct on the part of the applicant was alleged. It was not necessary to go further and provide the names of claimants. Such information could have been garnered by the applicant through a more careful search of his files.
[57]Furthermore, in Nrecaj, disclosure was refused despite having been requested in a timely manner. In contrast, the conduct of the applicant with respect to the process he now impugns has been far from timely. He did not reply in any manner to the concerns of the IRB until August 9, 2001. He had been advised to respond before April 23, 2001. If disclosure of particulars was of sufficient importance to the applicant, the merits of this application would have been better served had he requested that disclosure prior to the rendering of the decision of the ADC, rather than awaiting this forum to denounce the absence of that disclosure.
[58]The course of conduct of the applicant betrays his lack of diligence in responding to the correspondence of the IRB. He claims to have relied on his counsel to handle this matter on his behalf, but did not contact his counsel prior to the stated deadline in order to ensure that he would act on the matter. His explanations for failing to act sooner were found to be implausible given his experience in appearing before the IRB.
[59]In conclusion, the applicant received clear notice of the concerns of the IRB regarding his conduct. To the extent that the applicant did not have an opportunity to present his case to the IRB, it is due to omissions for which he is responsible. Accordingly, I find that there was no breach of procedural fairness.
Jurisdiction
[60]The applicant claims that the ADC exceeded her jurisdiction when she imposed upon him a ban from appearing before the IRB. Among other submissions, it is the view of the applicant that the ADC improperly exercised a power that could not be delegated to her. He also contended that in the absence of an express authorization by statute or regulation, the proposed sanction was not available to her.
[61]The applicant submitted that the ADC incorrectly applied Prassad, in support of her conclusion that the CRDD is master of its own procedure. According to the applicant, Prassad stands only for the limited notion that adjournment of proceedings is within the discretion of the adjudicator.
[62]It is true that the immediate practical effect of the decision of the Supreme Court in Prassad was to confirm that the adjudicator had the discretion to grant or refuse an adjournment. However, to limit the precedential value of this decision to such a specific point flies in the face of the broad judicial treatment that the case has been given since its release.
[63]The decision of Sopinka J., for the majority, in Prassad, has been mentioned in several other decisions. One of the decisions which followed the ruling in that decision was the holding of McKeown J. in Chong v. Canada (Attorney General) (1995), 104 F.T.R. 253 (F.C.T.D.). In that decision at paragraph 40, the Court understood Prassad as a comprehensive examination of the content of the duty of procedural fairness:
In my view, the procedures provided by the Treasury Board here meet the requirements of fairness as set out by Sopinka J. in Prassad, supra. The grievors are given an opportunity to be heard. There is no restriction on their participation.
[64]With respect to jurisdiction, Sopinka J. enunciated and applied a general principle of jurisdiction in arriving at the specific conclusion with respect to the jurisdiction of adjudicators. He states at pages 568-569:
In order to arrive at the correct interpretation of statutory provisions that are susceptible of different meanings, they must be examined in the setting in which they appear. We are dealing here with the powers of an administrative tribunal in relation to its procedures. As a general rule, these tribunals are considered to be masters in their own house. In the absence of specific rules laid down by statute or regulation, they control their own procedures subject to the proviso that they comply with the rules of fairness and, where they exercise judicial or quasi-judicial functions, the rules of natural justice. [Emphasis added.]
[65]The jurisdictional context in which Prassad was decided was simply one of the contexts contemplated by this general statement by Sopinka J.
[66]In the case at bar, no specific statutory provisions or regulations limit the ability of the ADC to suspend anyone from appearing before the IRB on behalf of another person. Subsection 65(1) does not apply to bar the ADC from imposing a ban on the applicant. Her decision is not a rule of the type which can only be imposed by the Chairperson of the IRB. Examples of such rules would include the Convention Refugee Determination Division Rules, which apply to all parties and counsel appearing before the IRB. The decision of the ADC is an individual one in connection with a matter that was specifically delegated to her by the Chairperson.
[67]Accordingly, the ADC was not bound to carry out the process which led to the contested decision in a rigidly defined manner. She was only subject to comply with the rules of fairness and the rules of natural justice. As discussed above, she did so.
[68]With particular regard to the withdrawal of the privilege of representing others, the applicant cited R. v. Romanowicz, supra. He noted that the Court in that case stated that the power to disqualify agents, such as himself, should be exercised judicially, based on the circumstances present in a given case. His claim was that the IRB failed to consider the circumstances in his particular case.
[69]I find that the ADC adequately considered the circumstances regarding the conduct of the applicant before rendering her decision. She also pondered the evidentiary value of the explanations of the applicant for his tardy action before decided whether or not to grant his motion to reopen the case. I find that the IRB did not lose the jurisdiction, as exercised by the ADC, to disqualify the applicant from acting as an agent, on the basis that it did so without regard to the particular circumstances concerning the applicant.
[70]Given the procedural framework of the IRB, I accept its submission as intervener that it has the inherent jurisdiction to monitor its own procedures in order to ensure its integrity. Indeed, denial of the jurisdiction of the IRB to ensure the integrity of its processes would be a disservice to its stakeholders. These stakeholders include not only the claimants who appear before the Board and its divisions, but also the Canadian public at large, which is served by effective mechanisms for the application of immigration policy. In this vein, see Immigration Consultants: It's Time to Act: Ninth Report of the Standing Committee on Citizenship and Immigration (Eleni Bakopanos, Chairperson; December 1995) (motion record of the IRB, Tab 2, page 37).
[71]I also accept the submission of the intervener that it is not limited to banning the applicant from specific hearings on a case-by-case basis, contrary to what the applicant suggests in his submissions. If the IRB is of the view that a broader ban on the applicant is necessary to preserve the integrity of its process as a tribunal, such a remedy is open to it. It may impose a general ban provided that its conclusion that the sanction is necessary is based on consideration of all the evidence before it.
[72]In the case at bar, the ADC, acting for the IRB, gave ample proof of the rigour with which she considered the evidence before her in rendering her decision. A ban prohibiting the applicant from appearing before the IRB was therefore a remedy that was available to her.
[73]To restrict the IRB to precluding the applicant only from appearing at specific hearings would cause frequent disruptions to its process. Such disruptions would run counter to the purpose of allowing the IRB to exercise jurisdiction over its own procedure. There is no principled reason why the IRB should have to mete out this sanction against the applicant by having members of its divisions refuse to hear him at every appearance when the ban proposed by the ADC would have the same effect in a more efficient manner.
[74]There are at least two deleterious effects of forcing the IRB to issue case-by-case refusals to hear the applicant instead of issuing a ban over a period of time. It would add unnecessary delays in terms of the time spent by members advising the applicant that he will not be heard. It would also cause disruptions due to claimants having to seek adjournments to retain replacement counsel after retaining the applicant without knowing that he would not be allowed to appear. Such an approach would therefore be untenable.
[75]For the above reasons, I conclude that the application should be dismissed.
[76]Counsel requested the opportunity to provide submissions in writing on certification with the benefit of these reasons. Therefore, counsel may serve and file submissions on certification within seven days of the receipt of these reasons. Thereafter, reply submissions may be served and filed within three days of service of the opposing party's submission.*
[77]Following consideration of those submissions, an order will be issued dismissing the application for judicial review.
| * Editor's Note: Supplementary reasons for order and order concerning questions proposed for consideration by the Federal Court of Appeal are published immediately following these reasons for order at [2003] 3 F.C. 444 (T.D.). |