text:
Canadian Refugee Procedure/RPD Rules 44-48 - Witnesses

Oral testimony is at the heart of most proceedings before the Refugee Protection Division. The rules herein concern witnesses other than a person who is party to a matter. For a discussion of the principles related to oral testimony before the Board more generally, see: Canadian Refugee Procedure/170 - Proceedings. As of 2024, the Notice to Appear form that the RPD sends out for hearings instructs claimants to "submit names of witnesses, if any" and explains: "In addition to documentary evidence, you may also bring a witness to the hearing. A witness is someone who has information that will support your claim. For example, a witness may be someone who has either seen what happened to you or experienced the same problems. Notify us about the witness no later than 10 days before the date of your hearing, and submit the following information: • witness name and contact information, • a brief description explaining why the witness will testify".

RPD Rule 44 - Witness notification
The text of the relevant rules reads: Witnesses Providing witness information 44 (1) If a party wants to call a witness, the party must provide the following witness information in writing to the other party, if any, and to the Division: (a) the witness’s contact information; (b) a brief statement of the purpose and substance of the witness’s testimony or, in the case of an expert witness, the expert witness’s brief signed summary of the testimony to be given; (c) the time needed for the witness’s testimony; (d) the party’s relationship to the witness; (e) in the case of an expert witness, a description of the expert witness’s qualifications; and (f) whether the party wants the witness to testify by means of live telecommunication. Proof witness information provided (2) The witness information provided to the Division must be accompanied by a written statement indicating how and when it was provided to the other party, if any. Time limit (3) Documents provided under this rule must be received by their recipients no later than 10 days before the date fixed for the hearing. Failure to provide witness information (4) If a party does not provide the witness information, the witness must not testify at the hearing unless the Division allows them to testify. Factors (5) In deciding whether to allow a witness to testify, the Division must consider any relevant factors, including (a) the relevance and probative value of the proposed testimony; and (b) the reason why the witness information was not provided.

44(1): This rule applies where a party wants to call a witness but does not apply where a party themselves will testify
Claimants automatically have the right to testify at a hearing and need not provide witness contact information in order to do so. The relevant rule regarding claimants testifying at a hearing is not Rule 44, instead see: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing.

44(1): This rule applies where a party wishes to call a witness, not where the Board is requiring the attendance of a witness
Members have the power to call and question witnesses on their own initiative and, on occasion, they may have to proceed in this manner if they are of the opinion that it is necessary to do so to reach a just and proper result in the case. When doing so, they are not bound by this rule. Instead, see: Canadian Refugee Procedure/165 - Powers of a Member.

44(1): If a party wants to call a witness, the party must provide the listed witness information in writing as required by this Rule
RPD Rule 44(1) provides that if a party wants to call a witness, the party must provide the listed witness information in writing as required by the rule above. A failure to do so may justify the RPD refusing to allow the witness to testify. But see: Canadian Refugee Procedure/RPD Rules 44-48 - Witnesses.

==== 44(1)(b): If a party wants to call a witness, the party must provide a brief statement of the purpose and substance of the witness’s testimony or, in the case of an expert witness, the expert witness’s brief signed summary of the testimony to be given ==== In Danaj v. Canada, the Federal Court upheld an Immigration Division decision to decline to hear from witnesses where the party wishing to call the witnesses refused to divulge the purpose and substance of the witness’ testimony, as required by the relevant rule on calling witnesses. In that case, the Applicant’s counsel had stated that he could not divulge the information because it would be prejudicial to his hearing strategy. However, with no idea of the purpose of the testimony, the member rejected the request to call the witnesses. The court concluded that the decision to refuse the witnesses under those circumstances did not amount to a breach of procedural fairness.

44(1)(f): If a party wants to call a witness, the party must provide information on whether the party wants the witness to testify by means of live telecommunication
Rule 44(1)(f) provides that if a party wants to call a witness, the party must provide witness information in writing to the other party, if any, and to the Division and include whether the party wants the witness to testify by means of live telecommunication. The Federal Court has held that the general rule before the RPD is that witnesses should be physically present. In Aslani v Canada, the RPD member required that the proposed overseas witnesses report to the Canadian embassy in the country where they resided to be identified, before she would hear them. On judicial review, the claimant maintained that a non-existent procedural rule was imposed upon him and that this infringed his right to be heard. The court, however, upheld the RPD's refusal to hear from the witnesses on the basis that testimony by telephone can create particular issues around establishing the identity of the witness.

44(4): Division has discretion not to allow a witness to testify where proper notice has not been provided
Pursuant to Rule 44(4), if a party does not provide the witness information required by the rule, their witness must not testify at the hearing unless the Division allows them to testify. In exercising this discretion, the Board must consider any relevant factors, including those specified in Rule 44(5). The courts have granted significant leeway to the RPD in the exercise of this discretion. For example, in Parveen v. Canada, the Board declared that the claimant had abandoned their claim. The claimant indicated during the hearing that she wished to have her landlord provide testimony in her special hearing on abandonment. The RPD declined to allow the testimony because no notice was given that he would be called as a witness, and he had not been excluded from the Applicant’s testimony. The court upheld this decision.

44(5): In deciding whether to allow a witness to testify, the Division must consider any relevant factors
In deciding whether to allow a witness to testify in a circumstance where witness information was not provided as required by RPD Rule 44, the Division must consider any relevant factors. Relevant factors include, but are not limited to, the two factors enumerated under Rule 44(5):

In assessing the probative value of testimony, the panel must not pre-judge the credibility of the testimony. In Ayele v. Canada, the court states that the essence of adjudication is the ability to keep an open mind until all the evidence has been heard. The reliability of evidence is to be determined in light of all of the evidence in a particular case. This is the reason why an adjudicator must remain open to persuasion until all of the evidence and submissions are received. Evidence, that at first blush may seem implausible, may later appear plausible when set in the context of subsequent evidence. It is, at the least, suggestive of an impermissibly closed mind to state “there’s no point calling the witness".
 * (a) the relevance and probative value of the proposed testimony
 * Was the witness excluded from hearing other testimony? A relevant factor when assessing the probative value of the testimony that could be offered is whether the witness was excluded from hearing other testimony in the case. RPD Rule 48 sets out a process for excluding a witness from hearing testimony during a hearing. In some cases, an observer will be present throughout a hearing and then a claimant will offer them as a witness. The fact that they were able to observe the other testimony that had been provided has been found relevant by the Division when determining the probative value (or lack thereof) of the anticipated testimony.
 * Does the proposed witness have first-hand knowledge of the matter of which they would testify?
 * Would the proposed witness be expressing an opinion, and if so, what is their expertise to do so?
 * (b) the reason why the witness information was not provided
 * Did the party exercise due diligence in preparing for the hearing? In cases where a party requests an adjournment in order to provide witness testimony, the court has commented that "If the POE notes contain errors, the applicant has adequate time before the hearing to marshal evidence for the purpose of explaining and correcting the errors. The applicant cannot ignore alleged mistakes in the POE notes, and then when confronted with them at the hearing, expect the Board to adjourn the hearing so that the applicant can obtain allegedly missing but available evidence. The Board hears approximately 25,000 cases a year, and has a tremendous backlog. The applicant must be ready with his evidence on the day scheduled for the hearing."

Recourse may also be had to the consideration of Rule 36, regarding undisclosed documents, as such decisions may apply mutatis mutandis to witnesses: Canadian Refugee Procedure/Documents.

Witnesses have a right to testify in the official language of their choice
The IRB Policy Statement on Official Languages and the Principle of the Substantive Equality of English and French provides that "All persons in the hearing room are free to speak the official language of their choice, including counsel for the subject of the proceeding. At the request of any party to the proceeding, the IRB will make arrangements to provide interpretation from one official language to the other, taking into consideration third language interpretation may also be required for the case." The policy emphasizes that both the Official Languages Act and the Canadian Charter of Rights and Freedoms establish official languages rights for parties as well as for individuals who are otherwise involved in IRB proceedings, such as witnesses and counsel.

Limitations on the ability of legal counsel to act as a witness in a proceeding
The Refugee Appeal Division has found that testimony from a claimant's counsel inadmissible before the tribunal, writing "I find counsel’s statutory declaration is inadmissible as evidence in this appeal." In reaching this conclusion, the RAD referred to the Code of Conduct of the Law Society of Alberta which provides that:"The Lawyer as Witness 4.02(1) A lawyer who appears as advocate must not testify or submit his or her own affidavit evidence before the tribunal unless permitted to do so by law, the tribunal, the Rules of Court or the rules of procedure of the tribunal, or unless the matter is purely formal or uncontroverted."The Board also noted that the Commentary set out in the Alberta Code also states:"A lawyer should not express personal opinions or beliefs or assert as a fact anything that is properly subject to legal proof, cross-examination or challenge. The lawyer should not, in effect, appear as an unsworn witness or put the lawyer’s own credibility at issue. The lawyer who is a necessary witness should testify and entrust the conduct of the case to another lawyer. There are no restrictions on the applicant’s right to cross-examine another lawyer, however, and the lawyer who does appear as a witness should not expect to receive special treatment because of professional status."The RAD concluded that "I find that his statutory declaration improperly provides evidence and is, therefore, not admissible." The ability of a lawyer to provide evidence in this way may thus depend on the jurisdiction and the rules of the Law Society in question. However, such provisions are common. For example, Article 76 of the Québec Code de déontologie des avocats indicates that a “lawyer must not personally act in a dispute if he knows or should know that he will be called upon as a witness.”

Such restrictions on a lawyer acting as a witness have been interpreted to extend to affidavits from other members of the same firm, although it is clear that this depends on the circumstances and is not an absolute bar.

See also the following discussion of how the Board is not bound by technical rules of evidence: Canadian Refugee Procedure/170 - Proceedings. As "the Division is not bound by any legal or technical rules of evidence" it is not bound to reject evidence provided by counsel, but it nonetheless has the residual discretion to do so as part of the broader discretion that it has to control its own process and balance the probative value of evidence with its prejudicial effect, if any, on the hearing process. In this way, the relaxation of evidentiary rules cannot be uniform in all matters; they must respond to the requirements of procedural fairness, and reflect the nature of the particular proceedings, issues involved, and interests at stake. In Ali v. Canada, the court concluded that it was not fair to accept a general statement from counsel on a highly contested and controversial point, instead of a statement directly from the party, not the counsel for the party: "In this case, given the adversarial context, the highly contested and controversial nature of the evidence in question, and potential for severe consequences resulting from the proceedings, the rules of procedural fairness required more than unsworn, general statements by counsel to an adversary in the proceedings regarding the provenance of evidence."See also the process for former counsel to respond to allegations of incompetent representation: Canadian Refugee Procedure/RPD Rules 14-16 - Counsel of Record.

RPD Rule 45(1) - Requesting summons
Requesting summons 45 (1) A party who wants the Division to order a person to testify at a hearing must make a request to the Division for a summons, either orally at a proceeding or in writing.

The authority of the Division to issue a summons for a person or documents
The term "summons" refers to a document delivered to a witness requiring the witness to attend and testify at a hearing and to bring all relevant documents in the witness's possession. The term "summons" is often used interchangeably with the term "subpoena" (which means, literally, "under penalty").

The legislative authority for enforcing a summons is found under s. 5 of the Inquiries Act. This provision allows the Division to either summon an individual or to compel the production of evidence. For a discussion of this provision, see Canadian Refugee Procedure/165 - Powers of a Member. A second basis for the Board's authority to summon a witness is s. 127(c) of the IRPA, which reads: Misrepresentation

127 No person shall knowingly (a) directly or indirectly misrepresent or withhold material facts relating to a relevant matter that induces or could induce an error in the administration of this Act; (b) communicate, directly or indirectly, by any means, false or misleading information or declarations with intent to induce or deter immigration to Canada; or (c) refuse to be sworn or to affirm or declare, as the case may be, or to answer a question put to the person at an examination or at a proceeding held under this Act.

Rule 45 does not have extraterritorial effect and only allows the Board to summon a person within Canada
When interpreting its identical rule, the IAD commented that it does not have extraterritorial effect: "The request for a summons or subpoena is denied for reasons that the IAD has no jurisdiction to issue a summons for persons outside Canada where the IAD has no extraterritorial power to enforce the summons. The jurisdiction of the IAD with respect to the issuance of summons under Rule 38 of the IAD Rules does not extend beyond Canada." It would appear that this interpretation is a persuasive one when interpreting the scope of the equivalent RPD rule.

RPD Rule 45(2) - Factors the Division must consider in deciding whether to issue a summons
Factors 45(2) In deciding whether to issue a summons, the Division must consider any relevant factors, including (a) the necessity of the testimony to a full and proper hearing; (b) the person’s ability to give that testimony; and (c) whether the person has agreed to be summoned as a witness.

Factors the Division is to consider when deciding whether to issue a summons
Members are not required to grant every request for a summons. Rule 45(2) provides that in deciding whether to issue a summons, the Division must consider any relevant factors, including:

 * (a) the necessity of the testimony to a full and proper hearing.
 * Is the testimony duplicative of evidence that will already be provided? Where other witnesses have given or will be giving testimony in the same area and the testimony of the witness in question would be repetitious and would only serve to prolong the hearing unnecessarily, members may well use their discretion not to issue a summons. In interpreting its identical rule, the Immigration Appeal Division considered this factor in Lama v. Canada when rejecting an application for a summons by noting that the testimony that the applicant sought to adduce from the persons who would be summoned was duplicated by, and less probative than, persons who were already going to be witnesses: "The appellant’s counsel submits the evidence of family members and the close relatives who witnessed the marriage ceremony is highly relevant to the proceeding. The wedding celebration is one of the many factors which will be considered by the Panel. The appellant’s and applicant’s testimonies are the more relevant pertaining to the genuineness of their marriage. For these reasons, I don’t find the testimony of the appellant’s sister and “big mommy” necessary for the full and proper hearing."
 * Can the evidence be obtained in other ways? In Ahmadpour v. Canada, the Board rejected a request for a summons on the basis that the evidence in question could be obtained in alternative ways, such as by the claimant's counsel and family members obtaining documents. If it appears that a summons naming a high profile person is requested simply for the purpose of publicity or for any other motive unrelated to the proper conduct of Refugee Division proceedings, the request may be denied.
 * May the testimony of the witness lead to other potentially relevant witnesses? In Akram v. Canada the Federal Court held that the RPD had been wrong to deny a request to summon a CBSA officer on the basis that even if the officer was unlikely to provide direct testimony that was relevant to the issue being considered, "the Officer had the ability to provide information about other individuals involved in the investigation" and that it was important to consider this purpose for summoning the officer.
 * (b) the person’s ability to give that testimony. Members may choose not to issue a summons where they are satisfied that the proposed witness does not have any relevant testimony to give. For example, if the person in question has provided information that they have no knowledge of the matter in question, this is a relevant consideration. In one case where a protected person sought to summon a CBSA officer who had been involved in his claim, the panel of the RPD stated that she "considered the factors laid out in the Rules and denied the application to summon the officer at the pre-hearing conference. The officer has already explained in writing the limited scope of his role in the investigation and his inability to give further testimony about any timeline. This was the basis for not agreeing to be summoned as a witness, which I find to be reasonable." This was on the basis that the officer in question had had a limited role in the claim about a decade prior and that the officer "took no further action, has no further knowledge about applications brought against the respondent, the related background, circumstances or the timeline."
 * (c) whether the person has agreed to be summoned as a witness.
 * Is the person not agreeing to be a witness? In one decision considering this factor in its identical rules, the Immigration Appeal Division weighed a respondent's disinclination to testify as follows: "the appellant provides in the June 8, 2017 submissions that he not wish to be a witness for the Minister. Having considered the respondent’s wishes, I find that the interests of justice, including the public interest that tribunals render full and fair decisions, outweigh any prejudice to the respondent and mandate the provision of his testimony at this appeal."
 * Is information about the person's (dis)agreement simply not before the Board? The reasoning of the IAD has been similar in cases where information about whether the person has agreed to be summoned is simply not before the tribunal, e.g. in Liu v. Canada the Board commented as follows: "As to whether Mr. Reid has agreed to be summoned as a witness, it is not clear that he has. However, I find that the interests of justice outweigh any inconvenience or prejudice to Mr. Reid. Therefore, I require the provision of his testimony at this appeal."
 * Has the person agreed to be a witness but wants a simmons nonetheless? A summons is not issued only to reluctant witnesses. A witness may want to receive a summons even though the witness is eager to give testimony. For example, a witness who has to miss work in order to testify may need to show an employer that he or she was required by law to attend the hearing. Production of the summons should provide the witness with a valid excuse for missing work.
 * Is the person exempt from being compelled to give evidence as a result of diplomatic immunity? Certain persons cannot be compelled to give evidence as witnesses in civil proceedings, including diplomatic agents, consular officers, and embassy administrative and technical staff. Unless such persons agree to waive diplomatic immunity, they made not be summoned as a witness.

As the Division is to consider "any relevant factors", factors other than those listed above may properly be considered by a panel when making a decision, including:

 * The timing of the request and whether it may delay proceedings: Where a party has not acted diligently and a request for a summons risks delaying a proceeding, this may appropriately be considered when issuing a summons. For example, when interpreting its identical provision, the IAD commented as follows in Liu v. Canada: "While the relevant factors in this case support the granting of a summons, I note that the Appellant brought this application on April 2, 2019 with a hearing resumption date scheduled for April 24, 2019.  This matter was adjourned following the first sitting on January 29, 2019 and the content of Mr. Reid’s statutory declaration were known to the Appellant at that sitting and prior to the commencement of the hearing of this appeal.  As such, while the application for a summons is granted, the Appellant should be prepared to proceed on April 24, 2019 regardless of whether Mr. Reid appears at the hearing."

RPD Rule 45(3) - How to use a summons
Using summons (3) If a party wants to use a summons, the party must (a) provide the summons to the person by hand; (b) provide a copy of the summons to the Division, together with a written statement indicating the name of the person who provided the summons and the date, time and place that it was provided by hand; and (c) pay or offer to pay the person the applicable witness fees and travel expenses set out in Tariff A of the Federal Courts Rules.

Rule 45(3)(a) Requires Personal Service of the Summons
When interpreting its similar rule, the Immigration Appeal Division commented on the fact that electronic service is not sufficient to meet the requirement that the summons be provided "to the person by hand": "The Appellant shall comply with section 38(3) of the IAD Rules and any other relevant requirements in executing the summons. Section 38(3)(a) of the IAD Rules states that the Appellant must 'provide the summons to the summoned person by hand'. The Appellant has indicated that she will notify Mr. Reid of the summons by electronic means. While the Appellant is free to do so, the use of electronic means does not discharge the obligation of personal service as required in section 38(3)(a) of the IAD Rules."

RPD Rule 46 - Cancelling summons
Cancelling summons 46 (1) If a person who is summoned to appear as a witness wants the summons cancelled, the person must make an application in writing to the Division. Application (2) The person must make the application in accordance with rule 50, but is not required to give evidence in an affidavit or statutory declaration.

Rule 46(1): Application in writing to cancel a summons
If a witness who has received a summons can show that the summons should not have been issued in the first place or that the summons is no longer proper for any reason, the summons may be cancelled.

RPD Rule 47 - Arrest warrant
Arrest warrant 47 (1) If a person does not obey a summons to appear as a witness, the party who requested the summons may make a request to the Division orally at the hearing, or in writing, to issue a warrant for the person’s arrest. Written request (2) A party who makes a written request for a warrant must provide supporting evidence by affidavit or statutory declaration. Requirements for issue of arrest warrant (3) The Division must not issue a warrant unless (a) the person was provided the summons by hand or the person is avoiding being provided the summons; (b) the person was paid or offered the applicable witness fees and travel expenses set out in Tariff A of the Federal Courts Rules; (c) the person did not appear at the hearing as required by the summons; and (d) the person’s testimony is still needed for a full and proper hearing. Content of warrant (4) A warrant issued by the Division for the arrest of a person must include directions concerning detention or release.

RPD Rule 48 - Excluded witnesses
Excluded witness 48 If the Division excludes a witness from a hearing room, no person may communicate to the witness any evidence given while the witness was excluded unless allowed to do so by the Division or until the witness has finished testifying.

Communicating with an excluded witness may amount to witness tampering
In (Re) Mumtaz Khan, counsel for a claimant provided information to an excluded witness and the Board concluded that this amounted to witness tampering and sanctioned the counsel.

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


text:
Canadian Refugee Procedure/RPD Rules 49-52 - Applications

RPD Rule 49 - General provision describing how to make, respond to, and reply to a response to an application
The text of Rule 49 reads: Applications

General

General provision 49 Unless these Rules provide otherwise, (a) a party who wants the Division to make a decision on any matter in a proceeding, including the procedure to be followed, must make an application to the Division in accordance with rule 50; (b) a party who wants to respond to the application must respond in accordance with rule 51; and (c) a party who wants to reply to a response must reply in accordance with rule 52. === Evidence attached to an application, a response to an application, or a reply to a response must meet the requirements in Rules 35, 36 or 43 regarding relevance, probative value, new evidence, etc. (as applicable) === The fact that Rules 50(4), 51(2), and 52(2) make provision for a party to attach evidence to an application, a response, or a reply to a response, does not establish the legal framework for whether or not such evidence is to be accepted. It merely provides the process and procedure for providing such evidence. Instead, the rules for whether or not such evidence should be accepted are Rule 35 (if the evidence is provided at least 10 days prior to the hearing date), Rule 36 (if the evidence is provided within 10 days of the hearing), or Rule 43 (if the evidence is provided post-hearing).

The Board may convene a conference in response to an application made under these rules
As Lorne Waldman notes in his text, "once all of the documents have been received by the parties, the Refugee Protection Division may order a hearing into the application or, in cases where it is satisfied that no injustice would result, may dispose of the matter without a hearing." The framework in the Rules for having such a hearing are the provisions in Rule 24 on case conferences: Canadian Refugee Procedure/Conferences.

RPD Rule 50 - How to Make an Application
How to Make an Application

Written application and time limit 50 (1) Unless these Rules provide otherwise, an application must be made in writing, without delay, and must be received by the Division no later than 10 days before the date fixed for the next proceeding.

Oral application (2) The Division must not allow a party to make an application orally at a proceeding unless the party, with reasonable effort, could not have made a written application before the proceeding.

Content of application (3) Unless these Rules provide otherwise, in a written application, the party must (a) state the decision the party wants the Division to make; (b) give reasons why the Division should make that decision; and (c) if there is another party and the views of that party are known, state whether the other party agrees to the application.

Affidavit or statutory declaration (4) Unless these Rules provide otherwise, any evidence that the party wants the Division to consider with a written application must be given in an affidavit or statutory declaration that accompanies the application.

Providing application to other party and Division (5) A party who makes a written application must provide (a) to the other party, if any, a copy of the application and a copy of any affidavit or statutory declaration; and (b) to the Division, the original application and the original of any affidavit or statutory declaration, together with a written statement indicating how and when the party provided a copy to the other party, if any.

The Rule 50(4) requirement that evidence be provided in an affidavit is waived during the Covid-19 pandemic
The Refugee Protection Division: Practice Notice on the resumption of in-person hearings states: Several RPD Rules refer to RPD Rule 50 which requires that an application be accompanied by an affidavit or statutory declaration. Until further notice, the requirement to provide an affidavit or statutory declaration is waived. This waiver applies to all applications, including those made pursuant to Chairperson’s Guideline 8 to declare a person to be a vulnerable person.

The waiver also applies to the Response to the Application (RPD Rule 51) and the Reply to the Response (RPD Rule 52).

RPD Rule 51 - How to Respond to a Written Application
How to Respond to a Written Application

Responding to written application 51 (1) A response to a written application must be in writing and (a) state the decision the party wants the Division to make; and (b) give reasons why the Division should make that decision.

Evidence in written response (2) Any evidence that the party wants the Division to consider with the written response must be given in an affidavit or statutory declaration that accompanies the response. Unless the Division requires it, an affidavit or statutory declaration is not required if the party who made the application was not required to give evidence in an affidavit or statutory declaration, together with the application.

Providing response (3) A party who responds to a written application must provide (a) to the other party, a copy of the response and a copy of any affidavit or statutory declaration; and (b) to the Division, the original response and the original of any affidavit or statutory declaration, together with a written statement indicating how and when the party provided a copy to the other party.

Time limit (4) Documents provided under subrule (3) must be received by their recipients no later than five days after the date on which the party receives the copy of the application.

RPD Rule 52 - How to Reply to a Written Response
How to Reply to a Written Response

Replying to written response 52 (1) A reply to a written response must be in writing.

Evidence in reply (2) Any evidence that the party wants the Division to consider with the written reply must be given in an affidavit or statutory declaration that accompanies the reply. Unless the Division requires it, an affidavit or statutory declaration is not required if the party was not required to give evidence in an affidavit or statutory declaration, together with the application.

Providing reply (3) A party who replies to a written response must provide (a) to the other party, a copy of the reply and a copy of any affidavit or statutory declaration; and (b) to the Division, the original reply and the original of any affidavit or statutory declaration, together with a written statement indicating how and when the party provided a copy to the other party.

Time limit (4) Documents provided under subrule (3) must be received by their recipients no later than three days after the date on which the party receives the copy of the response.


text:
Canadian Refugee Procedure/RPD Rule 53 - Changing the Location of a Proceeding

RPD Rule 53 - Changing the Location of a Proceeding
The text of the relevant rule reads: Changing the Location of a Proceeding

Application to change location 53 (1) A party may make an application to the Division to change the location of a proceeding.

Form and content of application (2) The party must make the application in accordance with rule 50, but is not required to give evidence in an affidavit or statutory declaration.

Time limit (3) Documents provided under this rule must be received by their recipients no later than 20 days before the date fixed for the proceeding.

Factors (4) In deciding the application, the Division must consider any relevant factors, including (a) whether the party is residing in the location where the party wants the proceeding to be held; (b) whether a change of location would allow the proceeding to be full and proper; (c) whether a change of location would likely delay the proceeding; (d) how a change of location would affect the Division’s operation; (e) how a change of location would affect the parties; (f) whether a change of location is necessary to accommodate a vulnerable person; and (g) whether a hearing may be conducted by a means of live telecommunication with the claimant or protected person.

Duty to appear (5) Unless a party receives a decision from the Division allowing the application, the party must appear for the proceeding at the location fixed and be ready to start or continue the proceeding.

Commentary on the Rule 53(4) Factors
The IRB provides a specific form to make such applications, the Application to Change the Location of a Proceeding form. Waldman notes in his text that "The Rules confer a broad discretion on the Division to determine whether or not to grant the change of venue, and it is unlikely that the discretion will be interfered with by a reviewing court unless the Division acts arbitrarily." Past decisions have commented on the above factors thusly:

 * (a) whether the party is residing in the location where the party wants the proceeding to be held:
 * Where a party has moved, this points to moving the proceedings: The instructions provided on the IRB website about these applications is that the Application to Change the Location of a Proceeding form "can be used by claimants who have moved or who intend to move, and who wish to have their proceeding held at a Refugee Protection Division (RPD) office in another city in Canada." As a result, the fact that a party is residing in the new location is a factor in favour of moving proceedings there.
 * An intent to move is also properly considered: Additionally, as per the instructions quoted supra, the Board has communicated that it is also appropriate for those who intend to move to bring such applications prior to doing so.
 * Location of counsel not generally an appropriate consideration: In contrast, where such applications have been made to move proceedings away from where an individual resides to another city where the individual's counsel resides, the fact that the individual concerned does not reside in the new city being proposed has been taken as a factor pointing against accepting the application. In interpreting its similar rule, the Immigration Appeal Division commented on this as follows: "I note that the appellant`s representative of choice resides in Vancouver and although not stated, may be one of the factors driving the application to change the location of the proceeding. In the absence of argument or evidence to suggest that travel for the representative is more onerous than travel for the appellant, that is a neutral consideration in this case." The general view is that it was open to counsel not to accept the retainer and to suggest to the claimant seek counsel in the province where they reside, and that not having done this, counsel can either travel to the location where the hearing is being held to participate in the hearing in-person, counsel can request that they be able to appear via video or telephone, or the claimant can retain any of the number of counsel who are available to provide legal services in in the location where the hearing is being held.
 * (b) whether a change of location would allow the proceeding to be full and proper:
 * Not generally necessary for witnesses to testify in person for a proceeding to be "full and proper": It is common that witnesses will provide testimony by telephone and it will not generally be necessary to change a location in order to hear from witnesses in person. In this respect, where witnesses are in another city in Canada and they testify by telephone, the claimant is in no different a position from the numerous claimants who rely on witnesses located overseas and consequently adduce their evidence by telephone or video.
 * (c) whether a change of location would likely delay the proceeding: This is a consideration both where a date has been set and where a date has not been set.
 * Where hearing date set: In terms of cases where a date has been set, in interpreting its similar rule, the Immigration Appeal Division has held that a change of location that would require abandoning an existing date and substituting it for a later date is a factor that points against granting an application to change location.
 * Where hearing date not set: Delay of a proceeding is also a factor even for claims where a hearing date has not yet been scheduled. The Board publishes statistics on the number of pending cases in each of its regions on its website. The Eastern region has a greater number of pending cases than the Central region, which in turn has a greater number of pending cases than the Western region, and as a result, all else being equal, changing location to the Eastern region is likely to delay a proceeding, while changing location to the Western region is unlikely to do so.
 * Delay should be considered, not expediting a hearing: While the Division must consider whether a change of venue request will result in a delay or slowing of the proceedings, the expediting of proceedings is not a listed factor. While it is open to the Division to consider any relevant factors, as a matter of policy, claimants should not be permitted to change the venue of their cases simply to obtain an earlier hearing date. Allowing applications for a change of venue so as to allow an earlier hearing date is not proper, as the likely impact on proceedings is that claimants will seek to bring such applications as a form of “forum shopping.” Ultimately, this would not benefit the operation of the Division as pressures would simply shift from one location to another, with a concomitant increase in delay in the receiving location. Furthermore, this option would be available only to those with sufficient financial means to travel for the purpose of attending their hearing. This provision cannot have been intended to provide an advantage to those of greater financial means. Instead, the Refugee Protection Division has a Policy on the Transfer of Files for Hearings by Videoconference which provides for a principled, as opposed to ad hoc, approach to transferring workload between regions and using videoconferencing in order to efficiently and fairly utilize the Board's resources.
 * (d) how a change of location would affect the Division’s operation:
 * Does the Board have an office in the location proposed? In commenting on its similar rule, the Immigration Appeal Division has noted that there are administrative and operational implications for IAD processes conducted in itinerant locations. The Board has registries in Montreal, Toronto, and Vancouver, and it has permanent offices in a number of other cities including Ottawa, Calgary, Edmonton, and Winnipeg, and facilities and resources to conduct hearings in those cities are generally more readily available than in itinerant locations such as Saskatoon, where the Board's presence is more occasional. Such operational realities are properly considered when entertaining such requests to move proceedings.
 * (e) how a change of location would affect the parties:
 * Effect on Minister: The administrative and operational effects on the Minister of a change in location requested by a claimant is a factor to be considered where the Minister is intervening in a proceeding. It is for this reason that the the Application to Change the Location of a Proceeding form instructs that any application made by a claimant "must also include the views of the Minister, if known." By way of example, in interpreting its similar rule, the Immigration Appeal Division concluded that this factor pointed against a change of location as follows: "In this case, the file would have to be physically transferred between the two Canada Border Services Agency (CBSA) units that serve the IAD’s Western Region and a different hearings officer would be required to prepare the file on relatively short notice. A transfer within one week of an ADR proceeding would, in this circumstance, be an unreasonable hardship on the respondent in the absence of other exceptional circumstances that would compel such a transfer."
 * (f) whether a change of location is necessary to accommodate a vulnerable person: Vulnerable persons are individuals whose ability to present their cases before the IRB is severely impaired. Regard should be had to the Chairperson Guideline 8: Procedures With Respect to Vulnerable Persons Appearing Before the IRB. A number of commonly considered accommodations, such as allowing the vulnerable person to provide evidence by videoconference or other means, allowing a support person to participate in a hearing, and creating a more informal setting for a hearing may be relevant to requests to change the location of a hearing.
 * (g) whether a hearing may be conducted by a means of live telecommunication with the claimant or protected person:
 * In general, videoconferencing is not considered unfair or a detriment: Section 164 of the Immigration and Refugee Protection Act (IRPA) provides that "where a hearing is held by a Division, it may, at the Division's discretion, be conducted in the presence of, or by means of, live telecommunication with, the person who is the subject of the proceedings." The Board has a policy entitled Use of Videoconferencing in Proceedings before the Immigration and Refugee Board of Canada which sets out that it is the IRB 's position that provided that it is carried out in accordance with appropriate technological and procedural standards, videoconferencing does not affect the quality of the hearing or decision-making and respects the principles of natural justice and procedural fairness. That said, while not strictly a legal consideration, it may be noted that many counsel do not like videoconferencing and academic commentators have called on the Board to "limit this practice as much as possible" because of the way that, among other things, the subtle lags inherent in the technology can affect perceptions of credibility according to psychological research. The Board commissioned an external review of the use of videoconferencing technology in hearings and the resultant report includes much grousing from Board Members; the Board made some changes to its practices in response to the report, but other challenges identified by Members and counsel therein remain.
 * The Board can partially accommodate a request: In his text, Waldman notes that "in some cases, the tribunal will partially accommodate the request by allowing the person to appear by video conference so that the tribunal is located in the location set for the hearing and the claimant and their counsel are located at a different location."
 * Claimant retains the option to attend in person: The Refugee Protection Division Policy on the Transfer of Files for Hearings by Videoconference states that where a file is heard via videoconference at a different RPD office from that nearest to the claimant, a claimant retains the right to, at their own expense, attend a hearing in-person in another region from where they reside: "a claimant, and counsel, if any, may choose to attend the hearing in person in the receiving region at claimant's own expense."
 * Types of cases where videoconferencing is inappropriate: The Refugee Protection Division Policy on the Transfer of Files for Hearings by Videoconference recognizes that there are circumstances in which it is inappropriate to hold a hearing by videoconference, including certain cases involving unaccompanied minors and persons who, in the opinion of the RPD, are unable to appreciate the nature of the proceedings; some cases involving detained persons receiving priority processing; and particular highly complex cases, for example, cases likely to involve multiple sittings, those involving in-person Ministerial interventions where case complexities have been confirmed, or those involving the joining of multiple files where significant case complexities exist.

This rule governs changes to the region in which a claim will be heard, not conversions between virtual and in-person hearings
Applications to convert the format of a hearing, for example from remote to on-site, are addressed through Rule 50 with its 10-day deadline, not through this rule, as stated by the Division.

An application to change the location of a proceeding does not put other timelines on hold
Nothing in the Refugee Protection Division Rules or the BOC forms indicates a hold period pending a venue change request. As such, the fact that an individual has moved and has submitted a request to transfer their file does not excuse them from appearing at other proceedings, filing completed BOC forms on time, etc.

The Division has the jurisdiction to conduct a hearing even if a claimant departs from Canada
One issue that can arise with regards to the location of proceedings relates to the Division's jurisdiction to conduct proceedings where the claimant is outside of Canada. Claims will only be referred to the Division where a claimant is in Canada, but in some cases a claimant may leave Canada while their claim is pending. For example, a claim may be declined, the claimant may judicially review the decision, the claimant may be deported, and then the claimant may succeed on judicial review and have their matter returned to the Board. In some situations, the claimant will be permitted to return to Canada to attend their hearing at that point. In other cases, the Division has conducted a hearing remotely while the claimant is outside of Canada, for example by telephone or based upon the record (Freitas v. Canada). In other cases, the Board has proceeded with the case "as though the [claimant] were in Canada."

See also: Canadian Refugee Procedure/RPD Rule 65 - Abandonment.