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Canadian Refugee Procedure/RPD Rule 57 - Proceedings Conducted in Public

RPD Rule 57 - Proceedings Conducted in Public
The text of the relevant rule reads: Proceedings Conducted in Public

Minister considered party 57 (1) For the purpose of this rule, the Minister is considered to be a party whether or not the Minister takes part in the proceedings.

Application (2) A person who makes an application to the Division to have a proceeding conducted in public must do so in writing and in accordance with this rule rather than rule 50.

Oral application (3) The Division must not allow a person to make an application orally at a proceeding unless the person, with reasonable effort, could not have made a written application before the proceeding.

Content of application (4) In the application, the person must (a) state the decision they want the Division to make; (b) give reasons why the Division should make that decision; (c) state whether they want the Division to consider the application in public or in the absence of the public; (d) give reasons why the Division should consider the application in public or in the absence of the public; (e) if they want the Division to hear the application orally, give reasons why the Division should do so; and (f) include any evidence that they want the Division to consider in deciding the application.

Providing application (5) The person must provide the original application together with two copies to the Division. The Division must provide a copy of the application to the parties.

Response to application (6) A party may respond to a written application. The response must (a) state the decision they want the Division to make; (b) give reasons why the Division should make that decision; (c) state whether they want the Division to consider the application in public or in the absence of the public; (d) give reasons why the Division should consider the application in public or in the absence of the public; (e) if they want the Division to hear the application orally, give reasons why the Division should do so; and (f) include any evidence that they want the Division to consider in deciding the application.

Providing response (7) The party must provide a copy of the response to the other party and provide the original response and a copy to the Division, together with a written statement indicating how and when the party provided the copy to the other party.

Providing response to applicant (8) The Division must provide to the applicant either a copy of the response or a summary of the response referred to in paragraph (12)(a).

Reply to response (9) An applicant or a party may reply in writing to a written response or a summary of a response.

Providing reply (10) An applicant or a party who replies to a written response or a summary of a response must provide the original reply and two copies to the Division. The Division must provide a copy of the reply to the parties.

Time limit (11) An application made under this rule must be received by the Division without delay. The Division must specify the time limit within which a response or reply, if any, is to be provided.

Confidentiality (12) The Division may take any measures it considers necessary to ensure the confidentiality of the proceeding in respect of the application, including (a) providing a summary of the response to the applicant instead of a copy; and (b) if the Division holds a hearing in respect of the application, (i) excluding the applicant or the applicant and their counsel from the hearing while the party responding to the application provides evidence and makes representations, or (ii) allowing the presence of the applicant’s counsel at the hearing while the party responding to the application provides evidence and makes representations, upon receipt of a written undertaking by counsel not to disclose any evidence or information adduced until a decision is made to hold the hearing in public.

Summary of response (13) If the Division provides a summary of the response under paragraph (12)(a), or excludes the applicant and their counsel from a hearing in respect of the application under subparagraph (12)(b)(i), the Division must provide a summary of the representations and evidence, if any, that is sufficient to enable the applicant to reply, while ensuring the confidentiality of the proceeding having regard to the factors set out in paragraph 166(b) of the Act.

Notification of decision on application (14) The Division must notify the applicant and the parties of its decision on the application and provide reasons for the decision.

By default, the Act requires proceedings to be conducted in private
By default, the IRPA requires that hearings before the RPD be conducted in camera: Canadian Refugee Procedure/166 - Proceedings must be held in the absence of the public. That said, the Board may open a refugee hearing to the public in exceptional circumstances. The Irwin Law text Refugee Law states that this almost always happens with the consent of the claimant. It notes, by way of example, that in recent years, several high-profile refugee claims have been heard in public with the consent of the claimants, including the claims of US military deserters Jeremy Hinzman and Brandon Hughey; US marijuana campaigner Steven Kubby and his family; and Chinese businessman Lai Cheong Sing and his family.

The Board may order that proceedings be conducted in private, in whole or in part
The Board's public commentary on the analogous Immigration Division rules states that "The [Division] may take any necessary measures to ensure the confidentiality of the proceeding, such as: a) hearing in private the evidence concerning the factors to be taken into consideration; and b) ordering that the proceeding be conducted in private, in whole or in part." A panel can attach conditions to its order, for example in Key (Re), a panel of the Refugee Protection Division provided for the following conditions on allowing the media to observe a hearing: "only non-disruptive audio equipment be allowed in the hearing room during proceedings and cameras to take still photographs only be allowed in the hearing room when the hearing was not in progress."

The Board may order a publication ban, in whole or in part
The Board's public commentary on the analogous Immigration Division rules states that "Even if it allows the proceeding to be conducted in public, the [Division] may take any necessary measures to ensure the confidentiality of the proceeding, such as: 1. hearing in private the evidence concerning the factors to be taken into consideration; and 2. ordering a ban on publication of the proceedings, in whole or in part."

The Board may issue sealing orders or confidentiality orders
See: Canadian Refugee Procedure/166 - Proceedings must be held in the absence of the public.


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Canadian Refugee Procedure/RPD Rule 58 - Observers

RPD Rule 58
The text of the relevant rule reads: Observers

Observers 58 (1) An application under rule 57 is not necessary if an observer is a member of the staff of the Board or a representative or agent of the United Nations High Commissioner for Refugees or if the claimant or protected person consents to or requests the presence of an observer other than a representative of the press or other media of communication at the proceeding.

Observers — factor (2) The Division must allow the attendance of an observer unless, in the opinion of the Division, the observer’s attendance is likely to impede the proceeding.

Observers — confidentiality of proceeding (3) The Division may take any measures that it considers necessary to ensure the confidentiality of the proceeding despite the presence of an observer.

RPD Rule 58 should be read in conjunction with section 166(e) of the IRPA
Section 166(e) of the IRPA provides: 166 Proceedings before a Division are to be conducted as follows: ... (e) despite paragraphs (b) to (c.1), a representative or agent of the United Nations High Commissioner for Refugees is entitled to observe proceedings concerning a protected person or a person who has made a claim for refugee protection or an application for protection; For further details, see: Canadian Refugee Procedure/Proceedings must be held in the absence of the public.

It is best practice to provide counsel with an opportunity to comment on the presence of any observers who are RPD employees
In Azanor v. Canada, an opportunity was provided to counsel to comment on the presence of persons observing the hearing, and it was not taken. The court concluded that "it is conceivable that the presence in the hearing room of the Principal Applicant’s two children, and the two observers from the IRB, created some awkwardness and discomfort for the Principal Applicant. Nevertheless, objections to this were not raised by the Principal Applicant or her counsel at the time of the hearing. These objections were only raised afterwards. In the absence of complaint, the RPD Member did not err in proceeding with the sensitive yet relevant line of questioning concerning the Principal Applicant’s sexual identity."

A panel should ensure the proper comportment and behaviour of observers
A panel should ensure the proper comportment and behaviour of observers. A panel should not allow observers to make comments or gestures to witnesses, for example.

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


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Canadian Refugee Procedure/RPD Rule 59 - Withdrawal

In certain circumstances, claimants may wish to withdraw a claim. This may happen, for example, if they have otherwise acquired status in Canada or if they wish to leave Canada.

IRPA Section 168(2)
Abuse of process 168(2) A Division may refuse to allow an applicant to withdraw from a proceeding if it is of the opinion that the withdrawal would be an abuse of process under its rules.

RPD Rule 59
The text of the relevant rule reads: Withdrawal

Abuse of process 59 (1) For the purpose of subsection 168(2) of the Act, withdrawal of a claim or of an application to vacate or to cease refugee protection is an abuse of process if withdrawal would likely have a negative effect on the Division’s integrity. If no substantive evidence has been accepted in the hearing, withdrawal is not an abuse of process.

Withdrawal if no substantive evidence accepted (2) If no substantive evidence has been accepted in the hearing, a party may withdraw the party’s claim or the application to vacate or to cease refugee protection by notifying the Division orally at a proceeding or in writing.

Withdrawal if substantive evidence accepted (3) If substantive evidence has been accepted in the hearing, a party who wants to withdraw the party’s claim or the application to vacate or to cease refugee protection must make an application to the Division in accordance with rule 50.

No decision is required from the Board to accept a withdrawal notice where no substantive evidence has been accepted
Board member Daniel Tucci has commented in one decision that "once the Notice to withdraw the claim is filed with the RPD, the claim is considered withdrawn and no decision is required by the RPD." This principle was explained by the Federal Court in Arndorfer v. Canada, a case considering a previous version of the RPD Rules which applies with equal force to the present rule:"The applicants complained in their affidavits that they were not contacted in order to confirm that they were withdrawing their claims. Such a complaint is not justified. As discussed above, the CRDD is entitled to rely on documents which it receives, and is entitled to presume that they have been properly executed. In addition, the abandonment hearings to which applicants have a right under s. 69.1(6) of the Act are not necessary in the case of a withdrawal. The applicant who is found by the CRDD to have abandoned a claim requires, as a matter of procedural fairness, the right to be heard by the body that is making that decision with regard to his or her claim. In the case of a withdrawal, the applicant is the one who makes the decision and exercises his right to put an end to his claim."


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Canadian Refugee Procedure/RPD Rules 62-63 - Reopening a Claim or Application

Section 170.2 of the IRPA
The legislative provision reads: No reopening of claim or application 170.2 The Refugee Protection Division does not have jurisdiction to reopen on any ground — including a failure to observe a principle of natural justice — a claim for refugee protection, an application for protection or an application for cessation or vacation, in respect of which the Refugee Appeal Division or the Federal Court, as the case may be, has made a final determination.

The RPD does not have jurisdiction to reopen after the RAD or Federal Court has made a final determination
Section 170.2 of the IRPA provides that the RPD does not have jurisdiction to reopen after the RAD or Federal court has made a final determination. This provision was implemented by Bill C-31 around 2012. The mischief that this provision is intended to address can be seen by looking at caselaw involving the prior Immigration Act that did not include a similar provision. In Shaju v. Canada, the Refugee Division found the claimant not credible and dismissed his claim. The Trial Division dismissed his application for leave for judicial review. The claimant then brought a motion before the Refugee Division to reopen his claim on the grounds that there had been a lack of proper translation. The Refugee Division dismissed the motion on the grounds that the translation errors were not significant and that, in any event, that issue had been dealt with in the leave application. The claimant then brought an application for leave for judicial review of the decision dismissing the motion to reopen. The Trial Division dismissed the application for leave. The only point raised in the original leave application was the lack of proper translation, and the court had refused leave after considering the claimant’s argument’s. That decision therefore gave rise to "issue estoppel", i.e., it was decided matter (res judicata), and could not be appealed.

Board jurisdiction to reopen a matter on its own initiative
The principle of functus officio provides that judgments are final and that a decision-maker loses jurisdiction once a formal decision is rendered, signed, and communicated to the parties. The principle is that, as a starting point, such decisions cannot be re-opened. Mr. Justice Francis Muldoon in Jimenez v. Canada articulated the principle of functus officio in the immigration context as follows:"[T]he principle of functus officio favours the finality of proceedings, although it is flexible in its application in the case of administrative tribunals. By this it is meant that whether or not the parties agree with the decision rendered, the case cannot be reopened unless it can be established that there was an error in expressing the manifest intention of the decision-maker or if there is a clerical error that needs to be corrected: Paper Machinery Ltd. v. J.O. Ross Engineering Corp. Recently, Justice Nadon of this Court also recognized that cases may be reopened if necessary to adhere to the principles of natural justice: Zelzle v. Canada. The principle specifically does not allow a tribunal to revisit a decision. [internal citations in quotation omitted]"As such, per the principle of functus officio, a decision, once made (and even if wrongly made), is still a binding decision. In the absence of statutory authority, a decision once made cannot be administratively revisited. While speaking of the IRB's predecessor Immigration Appeal Board, the Federal Court of Appeal held that the Board has no inherent or continuing jurisdiction to reopen a redetermination hearing of an application for refugee status.

This said, as Justice Nadon held in Zelzle v. Canada, "while the principle of functus officio favours the finality of proceedings, its application is flexible in the case of administrative tribunals. Proceedings may be reopened if justice requires it." The Supreme Court of Canada has stated that "Traditionally, a tribunal, which makes a determination which is a nullity, has been permitted to reconsider the matter afresh and render a valid decision." Exceptions to the principle of functus officio provide that a matter may be reopened in the following circumstances:

 * Clerical error or slip: There was a clerical error in drawing up the formal judgement that needs to be corrected. For example, in Chen v. Canada the tribunal issued amended reasons which "amalgamated a few paragraphs, corrected a number of footnotes to correctly cite to the National Documentation Package that was before it and made three amendments to the text of the decision". The court held that "the amendments made by the Board do not alter its original decision in any meaningful way and were made to correct a slip; accordingly, the doctrine of functus officio is inapplicable."
 * Error expressing the manifest intention of the decision-maker: There was an error expressing the manifest intention of the decision-maker. This exception cannot simply reflect a decision-maker having changed their mind; as a general rule, once a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind. However, in Canadian National Railway Company v. National Transportation Agency, the agency was found to possess jurisdiction to detail more precisely the types of documents it had ordered disclosed in its initial decision on the point. The Board provides as an example that, at the hearing, a panel might determine the claimant to be a Convention refugee. If a notice of decision were then issued stating that the claimant had been determined not to be a Convention refugee, clearly that notice of decision could be (and should be) amended under the second exception above.
 * Denial of natural justice: Where a tribunal recognizes that it has failed to observe the rules of natural justice, it may treat its decision as a nullity and rehear the case. This, however, cannot simply reflect a realization that the tribunal made an error of law; as a general rule, once a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal made an error within jurisdiction. The Board has stated that the types of errors in this regard go to procedure, not substance. For example, if the panel decides that it did not apply the correct interpretation of "particular social group", it cannot reopen to correct this mistake. As the court stated in Zelzle v. Canada, the “breach of natural justice exception” to the principle of functus officio was established to allow an administrative tribunal to reopen proceedings where, if the hearing of an application has not been held according to the rules of natural justice, the administrative tribunal may treat its decision as a nullity and reconsider the matter. Examples:
 * The court commented in Sainflina v. Canada that, in a situation in which a panel of the Board mistakenly dismissed a claim on the basis of a lack of perfection because the Board misplaced the Appellant's appeal submissions, the principle of functus officio would not prevent the RAD from correcting the failure in procedural fairness by reopening the file and rendering a decision on the file's merits.
 * The Board has provided as an example that, if the Refugee Division becomes satisfied that the interpreter made substantial mistakes during the hearing, the Refugee Division might find that the claimant did not have a proper "opportunity to be heard" and, as a result, the Division may grant a new hearing.
 * In Kaur v. Canada, the person concerned had not made a refugee claim at an inquiry because of threats and duress by her husband. Kaur has been taken for the proposition "that an immigration inquiry, held at a moment when the person concerned was under the direct influence of a third party (her husband) and not free to bring up facts as they were, could be seen as having breached the rules of natural justice, with the result that the decision that followed was a nullity under the Charter and the adjudicator could reconsider his decision."
 * New information: Should new information be brought to light, a decision can be reconsidered. However, the information cannot simply reflect a change in circumstances; as a general rule, once a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because there has been a change of circumstances. See also Agbona v. Canada: once the CRDD has decided a claim, it lacks jurisdiction to reopen for new facts. UNHCR has taken the view that under Canadian law new facts can be submitted to trigger a reopening of a hearing, however, it is not enough simply to have new facts, there must also be a lack of natural justice."
 * Strictly procedural decisions: There is a question about whether the functus officio principle applies to a decision that is strictly procedural in nature.

As such, the Board has the power to revisit its decisions in limited circumstances. The only limit on this jurisdiction in the statute is section 170.2 of the IRPA, above, which provides that the RPD lacks jurisdiction to reopen on any ground once the Federal Court or RAD has made a final determination of a matter and RPD Rule 70(a) which provides that the Division may only act on its own initiative, without a party having to make an application or request to the Division, if it first gives the parties notice and an opportunity to object (Canadian Refugee Procedure/General Provisions).

Once reopened, is a claim to be heard de novo or as a redetermination based on the previous record?
A “true de novo proceeding” is a proceeding where the second decision-maker starts anew: the record below is not before them and the original decision is ignored in all respects. A hearing de novo is, as the term implies, an altogether fresh or new hearing and is not limited to an inquiry to determine if the tribunal acted properly and correctly on the evidence and material before it. Black's Law Dictionary defines, "hearing de novo" in the following manner: "Generally, a new hearing or a hearing for the second time, contemplating an entire trial in same manner in which matter was originally heard and a review of previous hearing." Whether a claim, once reopened, will include the evidence and testimony previously on record is a question of procedural fairness that must be decided in each case. Where a denial of natural justice taints the whole proceeding, the tribunal must start afresh. In some cases, a procedural fairness violation in the original proceeding will be of such a nature that it would be unfair for the newly constituted panel to be presented with the previous, tainted evidence (for example in the case of interpretation inaccuracies). In other cases, a panel will have the discretion to consider the prior evidence, provided the applicants are given an opportunity to make representations and to provide explanations regarding the prior testimony. Doing so is generally discretionary; an RPD panel is not required to have regard to the transcript from a prior hearing on reconsideration: Huang v. Canada. Where possible, not having to repeat existing testimony is an efficient course of action consistent with a panel's mandate to "deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit." (Canadian Refugee Procedure/162 - Board Jurisdiction and Procedure) A panel's choice to have recourse to the testimony given at a prior sitting is not generally indicative of bias or of having pre-judged a matter. As a matter of procedure, the Board will generally have its legal services staff review matters that have been reopened or remitted in order to make a recommendation to the Division's management about what should remain on the record for the new panel, and whether certain documents should be removed from the record to avoid tainting the panel.

See also:

 * Canadian Refugee Procedure/The right to an impartial decision-maker
 * Canadian Refugee Procedure/The right to be heard and the right to a fair hearing

RPD Rule 62(1) - Who may make an application to reopen when
The text of the relevant rules reads: Reopening a Claim or Application

Application to reopen claim 62 (1) At any time before the Refugee Appeal Division or the Federal Court has made a final determination in respect of a claim for refugee protection that has been decided or declared abandoned, the claimant or the Minister may make an application to the Division to reopen the claim.

History of this provision
Under the previous version of the RPD Rules, the equivalent rule read: "55. (1) A claimant or the Minister may make an application to the Division to reopen a claim for refugee protection that has been decided or abandoned."

Rule 62(1) applies to applications that have either been decided on their merits or declared abandoned
Rule 62(1) provides that the claimant or the Minister may make an application to the Division to reopen a claim at any time before the RAD or Federal Court has made a final determination in respect of a claim for refugee protection that has been either decided or declared abandoned. As such, reopening applications can be made both to reopen claims that have been abandoned (e.g. Noel v. Canada ) as well as those that have been determined on their merits and either accepted or rejected (e.g. Simmons v. Canada ).

Limitation on reopening where a final determination has been made by the RAD or Federal Court
Rule 62(9) should be read in conjunction with s. 170.2 of the IRPA which forecloses any reopening of a claim for refugee protection or a claim for protection, pursuant to section 96 and subsection 97(1), respectively, of the Act, when a “final determination” has been made by either the Refugee Appeal Division or the Federal Court:

Burden of proof
As stated in Rule 62(1), either a claimant or the Minister may make an application to the Division to reopen a claim. The burden of proof is on the applicant. As the Division has held, this burden of proof should be relied upon by the Board and "The role of the Division hearing an application to re-open does not include a fact-finding mission on behalf of the applicants."

RPD Rule 62(2) - Form of the application for reopening
The text of the relevant rules reads: Form of application (2) The application must be made in accordance with rule 50 and, for the purpose of paragraph 50(5)(a), the Minister is considered to be a party whether or not the Minister took part in the proceedings.

Full Rule 50 requirements apply to such applications
Per Rule 50, the application will have to consist of a notice specifying the grounds on which the application is made, an affidavit setting out the facts [a requirement currently waived by the Covid-19 practice notice], and a statement of law and of argument that is to be relied upon by the applicant: Canadian Refugee Procedure/RPD Rules 49-52 - Applications

RPD Rule 62(3) - Contact information
Contact information (3) If a claimant makes the application, they must include in the application their contact information and, if represented by counsel, their counsel’s contact information and any limitations on counsel’s retainer.

RPD Rule 62(4) - Allegations against counsel
Allegations against counsel (4) If it is alleged in the application that the claimant’s counsel in the proceedings that are the subject of the application provided inadequate representation, (a) the claimant must first provide a copy of the application to the counsel and then provide the original application to the Division, and (b) the application provided to the Division must be accompanied by a written statement indicating how and when the copy of the application was provided to the counsel.

A claimant must follow the process set out in the relevant Board Practice Notice
See the IRB Practice Notice on Allegations Against Former Counsel. For more details on the right to counsel, and making arguments about the incompetence thereof, see: Canadian Refugee Procedure/RPD Rules 14-16 - Counsel of Record.

RPD Rule 62(5) - Copy of the notice of appeal or pending application
Copy of notice of appeal or pending application (5) The application must be accompanied by a copy of any notice of pending appeal or any pending application for leave to apply for judicial review or any pending application for judicial review.

RPD Rule 62(6) - Application must not be allowed absent a failure to observe a principle of natural justice
Factor (6) The Division must not allow the application unless it is established that there was a failure to observe a principle of natural justice.

History of this rule
The Federal Court has noted that the RPD’s "power to reopen a refugee claim is very limited" and that "the Rules are highly prescriptive". Rule 62(6) states the RPD “ must not allow the application unless it is established that there was a failure to observe a principle of natural justice” [emphasis added]. This rule updated the Rule 55(4) found in the previous version of the Refugee Protection Division Rules, (SOR/2002-228), which was broader in scope and read that the RPD “ must allow the application if it is established that there was a failure to observe a principle of natural justice” [emphasis added]. The background against which these rules were written, is that prior to the founding of the Immigration and Refugee Board, the Immigration Appeal Board had been entitled to reopen an appeal to hear new evidence if it saw fit to do so and it could revise its former decision because it had a continuing "equitable" jurisdiction to decide if a person should be allowed to remain in Canada. This type of continuing jurisdiction and broad latitude to reopen was explicitly not provided to the CRDD/RPD, and it was eventually removed from the powers of the Immigration Appeal Division, the IAB's successor.

Rule 62(6) limits applications to reopen to circumstances where there was a failure to observe a principle of natural justice
Rule 62(6) provides that the Division "must not allow" an application (from a party) to reopen unless it is established that there was a failure to observe a principle of natural justice. It is clear on a plain reading of Rule 62, that the right to reopen is a limited and unusual right to be exercised carefully.

The Board has affirmed that the onus is on the applicant to establish on a balance of probabilities there was a denial of a principle of natural justice. The Board has held that the role of the Division hearing an application to re-open does not include a fact-finding mission on behalf of the applicants, and the Division is not to second-guess the assessment of the situation of the original member who presided over the proceeding previously.

The limited scope of this rule may be contrasted with RPD Rule 60, concerning reopening withdrawn claims, which provides that the Division may reopen both if "it is established that there was a failure to observe a principle of natural justice" or if "it is otherwise in the interests of justice to allow the application". Which see: Canadian Refugee Procedure/RPD Rules 60-61 - Reinstating a Withdrawn Claim or Application.

A question can arise about the effect of RPD Rule 70, which allows a panel to excuse a person from a rule, and s. 170.2 of the Act, which concerns a panel's jurisdiction to reopen on "any ground", of which a failure to observe a principle of natural justice is just one ground. Specifically, Rule 70 provides that the Division may excuse a person from a requirement of a rule (Canadian Refugee Procedure/RPD Rules 69-71 - General Provisions). Section 170.2 of the Act provides that a panel may not reopen on any ground — including a failure to observe a principle of natural justice — once the Refugee Appeal Division or the Federal Court, as the case may be, has made a final determination (Canadian Refugee Procedure/RPD Rules 62-63 - Reopening a Claim or Application). Any argument that these provisions provide the RPD with jurisdiction to allow an application to reopen on a ground other than procedural fairness is best rejected.

As a starting-point, the common law generally limits a tribunal's ability to reopen a matter absent explicit statutory authority. For example, in Longia v. Canada, the Federal Court of Appeal held that the IRB's predecessor Immigration Appeal Board had been correct in deciding that it had no jurisdiction to reopen an application for redetermination of a claim which it had already disposed of solely in order to hear evidence of new facts. The RPD has not been held to have such jurisdiction. For example, the IRB has stated that panels normally do not have jurisdiction to reopen a claim to hear new evidence:"After the Refugee Division has rendered a decision, a claimant might request the Refugee Division to reopen the hearing, on the basis that the claimant has: (1) additional evidence which existed at the time of the hearing, but not presented at the hearing; or (2) new evidence which arose after the hearing. The Refugee Division should normally refuse to reopen in both situations, on the basis that it has no jurisdiction to do so."When considering a previous version of the RPD rules, the Federal Court rejected an argument that, while the rule expressly obliged the Division to reopen for breach of natural justice, since this was not stated to be the only ground for reopening, it did not preclude the Division from reopening decisions on other grounds, including the existence of new evidence. The Court held the rule did not expand the jurisdiction to reopen refugee and protection determinations and concluded that the Division could reopen only for breach of a principle of natural justice. This reasoning could be considered a persuasive basis on which to reject any application to excuse a party from the Rule 62(6) requirement pursuant to RPD Rule 70.

When considering the scheme of the Act and the relevant common law, panels arguably may not waive the requirement of Rule 62(6) that matters only be reopened in situations where a principle of natural justice was not observed, particularly where a panel seeks to re-open for new evidence to be considered. Parliament chose to not make a Pre-Removal Risk Assessment (PRRA) available for 12 months following a refugee decision, and chose to place limits on adducing new evidence at the Refugee Appeal Division. Allowing reopenings simply to consider new evidence could run contrary to these aspects of the scheme of the Act, and hence these parliamentary choices. In the words of the Federal Court of Appeal considering a previous version of this rule, the rule does not confer on the Refugee Division jurisdiction to reopen a dismissal of a refugee claim in order to consider new evidence relating, for example, changed country conditions. A failed refugee claimant can only put evidence of this nature to the immigration officer conducting a pre‑removal risk assessment (PRRA), or use it as the basis of an application to the Minister to remain in Canada on humanitarian and compassionate grounds.

What is a principle of natural justice and is this the same thing as procedural fairness?
As the Federal Court stated in Huseen v. Canada, one can interpret Rule 62(6) as permitting the RPD to reopen a claim where there has been either a denial of natural justice or a denial of procedural fairness to the applicant. This reflects the history of the terms "natural justice" and "procedural fairness". Originally, there was a distinction between the stricter rules of natural justice as they applied to judicial or quasi-judicial decisions ("natural justice") and those rules of fairness which would apply only to administrative decisions ("procedural fairness"). However, this distinction has been eroded and at present the Courts have accepted that there only exists a general duty of fairness which can be referred to by using either the term “natural justice” or the term “procedural fairness”.

RPD Rule 62(7) - Factors
Factors (7) In deciding the application, the Division must consider any relevant factors, including (a) whether the application was made in a timely manner and the justification for any delay; and (b) the reasons why (i) a party who had the right of appeal to the Refugee Appeal Division did not appeal, or   (ii) a party did not make an application for leave to apply for judicial review or an application for judicial review.

"Any relevant factors"
In deciding such an application, the Division must consider any relevant factors, including, but not limited to, those in (a) and (b) enumerated above. As the court noted in Lopez v. Canada, these factors must be relevant to the question of whether there has been a failure to observe a principle of natural justice (Rule 62(6)). The Board and courts have commented that these factors as follows:

In contrast, the courts have commented that the following factors will generally not be relevant to such an enquiry:
 * Whether the claimant was represented by counsel. There is nuance to this criterion, as the court noted in Huseen v. Canada wherein it stated "I wish to stress that a failure or delay in engaging counsel is, in itself, not an acceptable panacea to all the harm that results from missteps in the refugee process. Equally unacceptable, however, is a failure on the Board’s part to consider an individual’s circumstances in these situations."
 * The language(s) the claimants speak. For example, in Huseen v. Canada the Board considered that the BOC kit was provided to the claimants in Arabic, their first language, and concluded that this properly pointed away from any conclusion that there had been a failure to observe a principle of natural justice in the case. The Federal Court also held that an applicant chose not to ask anyone to verify what correspondence about their hearing date said, and consequently missed their hearing, was indicative of how they were not diligently pursuing their refugee claim, notwithstanding their limited literacy.
 * Whether the claimant complied with procedural obligations: Justice McHaffie ruled in Perez that "What is clear from the foregoing cases is that a failure to comply with procedural obligations does not automatically disqualify a claimant from relief on fairness grounds, but at some point a claimant will be considered the author of their own misfortune. The line between these two, and thus the assessment of procedural fairness, will be heavily dependent on the overall factual matrix and the conduct of the claimant." In Aguirre Meza v. Canada, the RPD concluded that the Applicant’s refugee claim being denied was the result “of a chains of events which the claimant himself set in motion.” and was thus not procedurally unfair.
 * Deficiency of counsel: If an application was not made in a timely manner for reasons that had to do with deficiency of counsel, and thus procedural fairness implications arise, then there may have been a failure to observe a principle of natural justice. See also: Canadian Refugee Procedure/RPD Rules 14-16 - Counsel of Record.
 * Whether the claimant received notice of the proceeding that preceded the application to reopen: Decisions have considered whether the claimant had an opportunity to be heard during the proceeding that preceded their application to reopen. For example, whether they received notice of an abandonment proceeding. See: Canadian Refugee Procedure/RPD Rule 65 - Abandonment.
 * Whether the applicant is attempting to reopen a claim that they succeeded on: The court comments that a request to reopen a claim under Rule 62 of the RPD Rules serves the purpose of providing an applicant with an equitable remedy when a denial of natural justice or procedural unfairness led to an unfavourable result. By corollary, it would be unnecessary for an applicant (other than the Minister) to need to reopen their successful claim. In Kaur v. Canada, the applicants’ original refugee protection claim had been decided in their favour in 2005. After the Minister applied to vacate their positive decision on the basis of misrepresentation, the applicants sought to reopen the claim in 2022, approximately 17 years later and after the decision that granted refugee protection was vacated. In upholding the RPD's decision to refuse to allow the applicants to reopen their claim, the court held that it was relevant that they were attempting to reopen a refugee protection claim that was decided in their favour, and that per the scheme of the act, adducing new evidence following a determination to vacate refugee protection under section 109(3) of IPRA is something that can be done under other provisions of the IRPA, such as the humanitarian and compassionate provisions.

 * Lack of prejudice to the Minister is not generally relevant: As the Federal Court commented when considering the analogous Refugee Appeal Division Rule, "it is difficult to see how a lack of prejudice to the Respondent is relevant to whether...there was a failure to observe a principle of natural justice. The Respondent certainly has a justifiable interest and obligation in ensuring that timelines are met. Otherwise, chaos would result. That is why there are time deadlines in the legislation and the relevant rules. Requiring any applicant to meet those timelines is not a breach of any principle of natural justice."
 * There is no requirement that the failure to observe a principle of natural justice arise from an error or mistake by the Board: As stated in Djilal v Canada, a failure to observe a principle of natural justice does not have to be the result of an error or mistake of the RPD. For example, negligence on the part of an applicant’s counsel has been recognized, in certain circumstances, as being sufficient to cause the applicant to have been denied natural justice in relation to an abandonment hearing. However, but see Kilave v. Canada: "Applications to reopen may only be allowed where a breach of natural justice by the Board can be established at the abandonment hearing; arguments that the applicant’s counsel was negligent or not diligent is relevant at the abandonment hearing, or on judicial review of the decision from the abandonment hearing, but become irrelevant hereafter. They are not relevant to whether the Board should reopen the claim. (2) The failure of the applicant’s original lawyer to file the PIF on time or to obtain an extension, or to attend the abandonment hearing, is not a basis upon which the Court will set aside a Board decision not to reopen a refugee claim." An additional example of a failure to observe a principle of natural justice that may justify reopening a claim is where a claimant fails to disclose a criminal charge; this may cause a breach of natural justice by preventing the Minister from considering whether to suspend the applicant’s refugee claim pursuant to s.103 of IRPA pending the outcome of the charges.
 * The fact that a claimant misunderstood their obligations does not in itself establish that they were denied procedural fairness: In Rokisini v. Canada the claimant stated that he mistakenly believed that his appeal to the RAD had been perfected. It had not been as the claimant had not submitted an application required, which is required. When the claimant failed to submit his application record by the required deadline, the RAD dismissed the appeal. On judicial review to the Federal Court, the claimant submitted that he misunderstood the obligations to file an appeal, and that if he had properly understood the steps required of him, he would have complied with them. In light of the language of the forms that had been sent by the Board to the claimant advising about the additional steps that he was required to take, the Board held that the claimant's misunderstanding was not sufficient to establish that procedural fairness had been denied: "I am not persuaded by the Applicant’s submissions that he mistakenly assumed that a hearing would be scheduled for the RAD appeal, and that the notice of appeal” was the equivalent of an appellant’s record .  A plain reading of the RAD Acknowledgement Letter would clearly compel the reader to take next steps".

Whether the application was made in a timely manner and the justification for any delay
Rule 62(7) requires that in deciding such an application, the Division must consider whether the application was made in a timely manner and the justification for any delay. Speed is often of the essence with applications to reopen, as claimants may be facing the prospect of imminent removal by CBSA, even prior to the Board arriving at a decision on the reopening application. A reopening application does not provide an automatic stay of removal. Reasons for delay that have been held to be "significant factors in play" in such cases have included:

 * How long the applicant had access to any new evidence: In Adgo v. Canada the court considered the analogous RAD rule and concluded that the Division was reasonable in denying an application and finding that there was no breach of procedural fairness in a situation where an applicant requested reopening a claim so that it could consider documents that the applicant had had access to for some months prior to the decision being rendered.
 * Challenges finding counsel because of holidays. For example, in Huseen v. Canada the court noted that the claimants "had difficulty finding a lawyer between the move to Alberta on December 18, 2013 and the January 7, 2014 abandonment hearing due to the Christmas holiday season".
 * Whether the claimant was diligent in keeping in touch with their counsel and the Board. For example, in Garcia v. Canada the Applicant could not be located despite (i) several months of both his counsel and the IRB trying unsuccessfully to locate and contact him, and (ii) the IRB thereafter rescheduling the hearing in the hope of giving the applicant a final chance. The court concluded that it was reasonable for the Board to refuse to reopen the claim in the circumstances. In contrast, in Glowacki v. Canada, the claim was abandoned after neither the claimant nor their counsel updated the claimants' contact information with the IRB when they moved. Counsel had gotten off the record because their legal aid certificate had been cancelled, but without providing the claimants' updated contact information. The claimants then did not receive the Notice to Appear for their hearing. In the circumstances, the court concluded that the Division's refusal to reopen the claim was unreasonable, noting that no slip or mistake of counsel should be permitted to bring about a miscarriage of justice.
 * Whether the claimant was diligent in making attempts to understand the decision terminating their claim. For example, in Driss v. Canada, the claimant's claim was closed and then the claimant waited two years before attempting to reopen the claim. The court concluded that the evidence before the panel was that the claimant received the original decision terminating the claim in a timely manner but failed to understand its significance or to make any attempt to understand its content. The court upheld the Board's decision that the claimant's evidence was insufficient to justify a two-year delay. In contrast, in Ravi v. Canada, the claimant applied to have his negative decision re-opened approximately 20 months after the decision was made. The court concluded that in the circumstances, including the applicant's significant mental health issues, including auditory hallucinations, paranoia and distress affecting his functioning in society, the claim should have been re-opened despite the amount of time that had passed.

RPD Rule 62(8) - Subsequent application
Subsequent application (8) If the party made a previous application to reopen that was denied, the Division must consider the reasons for the denial and must not allow the subsequent application unless there are exceptional circumstances supported by new evidence.

The Division should look at whether there is new evidence that was not before the original panel
Rule 62(8) provides that if a party made a previous application to reopen that was denied, the Division must not allow the subsequent application unless there are exceptional circumstances supported by new evidence. Such evidence must be new in the sense that it was not before the Division at the time of the original application to reopen.

The test for subsequent applications is whether there are exceptional circumstances supported by new evidence
As per Rule 62(6), the test for whether to allow an initial application to reopen focuses on whether there was a failure to observe a principle of natural justice: "The Division must not allow the application unless it is established that there was a failure to observe a principle of natural justice." As the Federal Court stated in Brown v. Canada, "the legal test is different for the first application to re-open. A first application to re-open a claim focuses on a breach of natural justice (s. 62(6) of the RPD Rules) as opposed to a second application which requires exceptional circumstances (s. 62(8) of the RPD Rules) for a file to be re-opened."

RPD Rule 62(9) - Other remedies and timing of decision
Other remedies (9) If there is a pending appeal to the Refugee Appeal Division or a pending application for leave to apply for judicial review or a pending application for judicial review on the same or similar grounds, the Division must, as soon as is practicable, allow the application to reopen if it is necessary for the timely and efficient processing of a claim, or dismiss the application.

RPD Rule 63 - Application to reopen application to vacate or to cease refugee protection
Application to reopen application to vacate or to cease refugee protection 63 (1) At any time before the Federal Court has made a final determination in respect of an application to vacate or to cease refugee protection that has been decided or declared abandoned, the Minister or the protected person may make an application to the Division to reopen the application.

Form of application (2) The application must be made in accordance with rule 50.

Contact information (3) If a protected person makes the application, they must include in the application their contact information and, if represented by counsel, their counsel’s contact information and any limitations on counsel’s retainer, and they must provide a copy of the application to the Minister.

Allegations against counsel (4) If it is alleged in the application that the protected person’s counsel in the proceedings that are the subject of the application to reopen provided inadequate representation, (a) the protected person must first provide a copy of the application to the counsel and then provide the original application to the Division, and (b) the application provided to the Division must be accompanied by a written statement indicating how and when the copy of the application was provided to the counsel.

Copy of pending application (5) The application must be accompanied by a copy of any pending application for leave to apply for judicial review or any pending application for judicial review in respect of the application to vacate or to cease refugee protection.

Factor (6) The Division must not allow the application unless it is established that there was a failure to observe a principle of natural justice.

Factors (7) In deciding the application, the Division must consider any relevant factors, including (a) whether the application was made in a timely manner and the justification for any delay; and (b) if a party did not make an application for leave to apply for judicial review or an application for judicial review, the reasons why an application was not made.

Subsequent application (8) If the party made a previous application to reopen that was denied, the Division must consider the reasons for the denial and must not allow the subsequent application unless there are exceptional circumstances supported by new evidence.

Other remedies (9) If there is a pending application for leave to apply for judicial review or a pending application for judicial review on the same or similar grounds, the Division must, as soon as is practicable, allow the application to reopen if it is necessary for the timely and efficient processing of a claim, or dismiss the application.


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Canadian Refugee Procedure/RPD Rule 65 - Abandonment

The RPD may declare a claim to be abandoned. A determination that a claim has been abandoned means that the claimant is "in default in the proceedings", per s. 168 of the Act. Most declarations of abandonment occur because a claimant failed to complete and submit a BOC. However, a significant number of declarations of abandonment occur after a claimant fails to appear for a hearing. For practical purposes, the declaration that a claim has been abandoned has the same consequences for the claimant as a determination that the claimant is not a Convention refugee.

Subsection 168(1) of the Act
The relevant provision of the IRPA reads: Abandonment of proceeding 168 (1) A Division may determine that a proceeding before it has been abandoned if the Division is of the opinion that the applicant is in default in the proceedings, including by failing to appear for a hearing, to provide information required by the Division or to communicate with the Division on being requested to do so.

The Board should produce written reasons for its determination that a claim has been abandoned
The Board states that, as a decision on abandonment may be reviewed by the Federal Court, therefore complete records of the actions of the Refugee Division and the reasons for those actions must be kept. For a discussion of the obligation to produce written reasons for the abandonment of a claim, see: Canadian Refugee Procedure/RPD Rules 67-68 - Decisions

A claim is not automatically abandoned upon a claimant's departure from Canada
The Federal Court has noted that, all things being equal, a refugee claim is not automatically abandoned when a claimant leaves Canada. Instead, it should only be considered abandoned when the IRB makes a decision to that effect pursuant to section 168 of IRPA. Even where a claimant is outside of Canada, the Division may have jurisdiction regarding a claim that is properly before it. That said, there will be circumstances where the reason why an individual is outside of Canada indicates that their refugee claim has been extinguished, for example the Ontario Court of Appeal has accepted that the execution of a removal order under subsection 40(3) of Ontario’s Childrens Law Reform Act extinguishes a refugee claim. However, the Board states that the fact that a claimant may have left the country is simply information to take into account and put on the record when making a decision about abandonment. Indeed, the former Immigration Act used to have a specific provision mandating a negative decision where both members were of the view that a person had, "since making the claim, visited the country that the person claims to have left, or outside of which the person claims to have remained, by reason of fear of persecution".

In Sabet v. Canada, a mother testified that her son, the minor claimant, was not at the hearing because he had been abducted by his father and that the police were investigating. The Division declared the minor claimant’s claim to have been abandoned, concluding that he was living in the U.S. and that he would not be able to attend the hearing in the near future. The Court set this decision aside, holding that the Division had failed to consider the relevant factor that the minor claimant had been abducted and had not left Canada willingly.

See also: Canadian Refugee Procedure/RPD Rule 53 - Changing the Location of a Proceeding.

Decisions about abandonment may not be appealed to the Refugee Appeal Division
Decisions regarding abandonment are not eligible for appeal to the RAD, but such decisions may be judicially reviewed. For an example of such a direct judicial review of an RPD abandonment decision that was considered by the court, see Singh v. Canada.

A Division may determine that any proceeding before it has been abandoned, not just a refugee claim
Section 168 of the IRPA provides that a Division may determine that a proceeding before it has been abandoned. The term "proceeding" in the Act and Rules is interpreted broadly to include, for example, pre-hearing applications and Minister's applications to cease protection: Canadian Refugee Procedure/RPD Rule 1 - Definitions.

RPD Rule 65(1) - Opportunity to Explain
The text of Rule 65 (concerning abandonment) reads: Abandonment

Opportunity to explain 65 (1) In determining whether a claim has been abandoned under subsection 168(1) of the Act, the Division must give the claimant an opportunity to explain why the claim should not be declared abandoned, (a) immediately, if the claimant is present at the proceeding and the Division considers that it is fair to do so; or (b) in any other case, by way of a special hearing.

The Division shall schedule a hearing to explain why a claim should not be declared abandoned
The Board states that the Division should be sending a copy of the Notice of Abandonment Hearing to counsel even where counsel has stated that he or she has lost contact with the claimant, because the claimant just might "re-surface" and get in touch with that counsel. In any event, the Refugee Division should be able to show that it has taken all reasonable steps to notify the claimant of the proceedings. Upon proof on a balance of probabilities that a document was sent to an applicant, a rebuttable presumption arises that the applicant received it, and the applicant’s statement that it was not received, on its own, does not rebut the presumption. See further: Canadian Refugee Procedure/RPD Rules 31-43 - Documents.

Minor claimants must have a representative appointed for them prior to any decision on abandonment being made
As the Federal Court of Appeal commented in Stumf v. Canada, "the age of the minor claimant was apparent from the outset, and the matter of designating a representative for her should have been considered at least at the point at which abandonment proceedings were in contemplation.... The failure of the Board to do so was an error that vitiates the decision...".

This particular rule does not apply to situations where Minister's counsel does not appear for a cessation or vacation proceeding
In Singh v. Canada, the RPD noted that Rule 65 of the Rules, which only outlines a process for abandonment proceedings where a refugee claimant fails to appear, does not apply to a situation where the Minister’s counsel fails to appear. However, in such circumstances, the Division has broad discretion, including to postpone a hearing and send a written communication to the Minister inquiring into the reasons why they did not attend the hearing on their application.

RPD Rule 65(2) - When the BOC Abandonment hearing must be scheduled
Special hearing — Basis of Claim Form (2) The special hearing on the abandonment of the claim for the failure to provide a completed Basis of Claim Form in accordance with paragraph 7(5)(a) must be held no later than five working days after the day on which the completed Basis of Claim Form was due. At the special hearing, the claimant must provide their completed Basis of Claim Form, unless the form has already been provided to the Division.

The timeline for when the Division must receive a BOC form set out in paragraph 7(5)(a) has been modified during the Covid-19 pandemic
For details, see: Canadian Refugee Procedure/RPD Rules 3-13 - Information and Documents to be Provided.

The normal timeline for scheduling a special hearing on abandonment for failure to provide a BOC form is suspended during the Covid-19 pandemic
The Refugee Protection Division: Practice Notice on the resumption of in-person hearings states that during the Covid-19 pandemic, "Although special hearings are usually held no later than five working days after the date the BOC Form is due, during the COVID-19 pandemic, the RPD may conduct these hearings beyond the five working days."

This rule applies whether the BOC form is not supplied at all or whether the BOC form is only partially filled out
The Board provided the following commentary to the previous version of the RPD Rules, which applies equally to this wording:"The [Form must] be complete. If the Division does not receive the [Form] or if the [Form] is not complete, a special hearing will be held ... to decide whether the claim should be declared abandoned (Immigration and Refugee Protection Act, subsection 168(1)). The claimant will be given a chance to explain the delay or default and give reasons why the claim should not be declared abandoned."

RPD Rule 65(3) - When the special hearing for failure to appear must be scheduled
Special hearing — failure to appear (3) The special hearing on the abandonment of the claim for the failure to appear for the hearing of the claim must be held no later than five working days after the day originally fixed for the hearing of the claim.

Where a claimant leaves the hearing early, should the Board schedule a resumption or commence the show cause abandonment?
Nanava v. Canada is a case which raises the question of when the Board should commence the abandonment procedure. Specifically, in that case a hearing before the RPD was commenced on March 2, 2017. At that hearing, Mr. Nanava became ill and fainted. Security personnel attended to him until emergency medical staff arrived. Mr. Nanava eventually regained consciousness and was transported to Mount Sinai Hospital in Toronto by the emergency medical staff. Counsel then applied to schedule a new sitting for the hearing of the claim to resume. The Member denied that request, and instead held that the proper procedure was that the claimant should demonstrate why he had not abandoned his claim by fainting and being taken to the hospital. The court commented on the Board's decision thusly:"I note that the RPD’s decision to embark upon a show cause hearing was also unreasonable. Given that Mr. Nanava and Counsel attended the scheduled March 2 hearing fully prepared to argue Mr. Nanava’s refugee claim, and that they were interrupted during the hearing by medical circumstances beyond Mr. Nanava’s control, it would have been appropriate to adjourn the substantive hearing to another date. In my view, Mr. Nanava was not in default in the proceedings. It follows that the conditions necessary to move into a show cause hearing were not met."In contrast, in Liang v. Canada the claimant appeared at the hearing but was not prepared to proceed and refused to do so. In that case, the court found that it was proper for the abandonment process to be triggered when the claimant refused to proceed and left the hearing.

RPD Rule 65(4) - Factors to consider at an abandonment hearing
Factors to consider (4) The Division must consider, in deciding if the claim should be declared abandoned, the explanation given by the claimant and any other relevant factors, including the fact that the claimant is ready to start or continue the proceedings.

The Board should consider whether the claimant has pursued their claim with diligence
When determining whether a claim has been abandoned, the test to be applied is whether the refugee claimant's conduct amounts to an expression of intention by that person that they do not wish to pursue (or has shown no interest in pursuing) their claim with diligence. It is said that the central consideration with respect to abandonment proceedings is whether the claimant’s conduct amounts to an expression of his or her intention to diligently prosecute his or her claim. Another way that this test has been phrased is that it "must determine whether [the claimant's] absences could reasonably be deemed an expression of his intention to no longer pursue his refugee claim with diligence, bearing in mind his obligation to provide a reasonable excuse for his failure to appear, as well as all of the other relevant factors which bear upon the matter". Subrule 65(4) directs the RPD to consider, in determining if a claim should be declared abandoned, "the explanation given by the claimant", whether the claimant is ready to start or continue the proceedings, as well as any other relevant factors. The RPD must decide whether the Applicant’s conduct showed that they did not wish or had no interest in pursuing their claim with diligence. The Court has held that a person whose safety is threatened in his or her country of origin and who is seeking the protection of a country of refuge is necessarily keen to comply with the legal framework that has been established for that purpose, and that it should not tolerate laxity. Furthermore, by the very wording of section 168(1) of the IRPA, the power to declare the abandonment of a proceeding is a discretionary power. The RPD is entitled to make such a declaration “if it is of the opinion” that the refugee protection claimant is in default in the proceedings. Regard may also be had to the way other Divisions of the Board interpret s. 168(1) of the IRPA, including as allowing them to declare a matter abandoned where the party has not complied with conditions imposed by the Division.

Factors that have been considered when assessing a claimant's diligence:

The explanation given by the claimant

 * Whether inability to proceed is caused by counsel instead of the claimant: In Mayilvahanam v. Canada, the evidence was that the applicant wished to proceed but was newly left on his own by counsel and did not wish to proceed without counsel. The court held that it had been unreasonable for the Division to abandon the claim as "The Member did not take into account all the relevant facts but merely focused on the length of time that the application had been in the IRB system. The evidence clearly establishes that the Applicant wished to proceed. The only evidence of abandonment is abandonment by counsel of his client." In contrast, in Singh v Canada a claim was abandoned because a complete BOC form was not provided to the Board, despite the claimant having been specifically advised of this deficiency and having been provided with time to remedy it, on the basis that the delict was the claimant's given the evidence before the tribunal that the claimant refused to attend at his counsel's office to remedy the deficiency, despite his counsel's entreaties to do so.
 * Whether the claimant has provided credible testimony to explain the delay: In Parveen v. Canada, the panel found that the claimant's explanation of a medical reason for her failure to attend her hearing was not credible as her explanation was shifting, evasive, and inconsistent. The court accepted that this incredible testimony reasonably supported the Board's conclusion that the claimant was not pursuing her claim diligently. Similarly, in Konya v. Canada, the court concluded that the fact that the claimant had submitted a fraudulent medical certificate to attempt to obtain a postponement of the hearing supported the Board's conclusion that they were not pursuing their claim diligently. In contrast, in Nanava v. Canada the claimant's counsel appeared at the claimant's abandonment hearing with medical evidence to show cause for Mr. Nanava’s absence from the abandonment hearing. Even though this evidence did not meet all of the requirements of Rules 65(5)-(7), the court still held that it was relevant to the claimant's continuing intention to pursue his claim.
 * Whether the claimant's conduct indicates a lack of intention to pursue the claim: The Board has stated that "Abandonment" includes both the act of failing to attend the hearing and the intention of not pursuing the claim. A claimant, for example, who is in hospital on the day of the hearing or who has a traffic accident on the way to the hearing has not abandoned the claim if the claimant’s intention was, at all times, to continue with the claim. In Singh v. Canada, the Federal Court emphasized that proof of service should be made part of the record in abandonment type cases. So, it is important for members to be able to state how they know that the document was sent to the claimant.

Attendance and scheduling history before the Division

 * Whether the claimant and/or counsel have attended past proceedings before the Board: The Board's claimant guide instructs claimants that "the RPD may declare that your claim has been abandoned if you do not go to your refugee protection claim hearing or do not go to your special hearing on the abandonment of your claim, if you are required to do so." As such, whether or not the claimant is appearing at the Board's proceedings is a very relevant consideration when determining whether or not the claimant has abandoned their claim. In Nanava v. Canada, the fact that Mr. Nanava and Counsel were at Mr. Nanava’s scheduled refugee claim hearing on March 2, 2017 in order to pursue Mr. Nanava’s substantive claim (but were unable to proceed) and the fact that counsel attempted to reschedule the abandonment hearing to a different date when he would be available so that he could reiterate his client’s intent to pursue his claim and show cause for Mr. Nanava’s absence were factors that pointed towards the claimant's continuing interest in pursuing his claim. In contrast, counsel for the Minister argued that "the Member reasonably decided that Mr. Nanava had abandoned his claim after Mr. Nanava failed to show on two separate occasions, and failed to provide a proper medical certificate as evidence of his inability to attend." The court rejected that argument on the facts of that case, but in general this would appear to be a proper consideration to be balanced amongst others. In Ressam v. Canada, in contrast, the court upheld a decision to abandon a claim notwithstanding the claimant's explanation that he had made a mistake as to the date of the hearing.
 * Whether past scheduling accommodations have been provided by the Board: For example, in Uandara v. Canada the Minister highlighted the number of accommodations that the claimants received, including two hearing postponements, the transferring of their file, and the scheduling of a videoconference. The court held that such factors were important in assessing the case: "For people who claim to fear returning to Namibia, the Applicants appear to have made little effort to establish their claim for refugee protection in Canada. The record suggests repeated accommodation by the Board and failures to appear by the Applicants that are more consistent with an attitude of avoidance than an attempt to assert a claim."
 * Whether the Board has complied with all procedural requirements: The Board has stated that before declaring any claim to have been abandoned, members have to review the file carefully to be sure that all of the procedural safeguards in the Act and Rules have been followed.

Documents and information that the claimant has provided

 * Whether the claimant has been diligent in keeping the Board up to date with their current and correct contact information: RPD Rule 4 requires claimants to provide any changes to their contact information in writing to the Division without delay: Canadian Refugee Procedure/Information and Documents to be Provided. The Board's claimant guide also instructs claimants about the importance of providing the Board with their current contact information, warning that "the RPD may declare that your claim has been abandoned if you do not provide your current and correct contact information." The court has held that a claimant who places himself in a position where communication is difficult or non-existent cannot plead lack of knowledge of what was occurring for excusing delay or a failure to appear. The court has also tended to be sympathetic where a claimant did not receive a notice from the Board as a result of a mistake, even where it is the claimant's mistake. Some examples follow:
 * A claimant should not be faulted for using the wrong form to supply updated contact information to the IRB: In Huseen v. Canada, the court commented on the Board's decision to abandon a claim in circumstances where a claimant had moved and had provided the Board with their updated contact information: "the Board had the opportunity and time to contact the [claimant] to inquire about any desire to abandon her claim. Indeed, the [location] change request form had her telephone number and the address at which the [claimant] could have been reached in Alberta. However, the Board did not do so, choosing instead to presume that she intended to have her claim abandoned, despite the message implicit in her change of venue request." The court held in that case that the Board had acted unreasonably.
 * A claimant should not generally be faulted where their counsel or interpreter was at fault in not providing updated contact information: The steps that the claimant took are relevant, whether or not updated contact information was actually received the Board. For example, in Andreoli v Canada, the claimant had told an interpreter about a change in address, and the interpreter had said they would advise the RPD but failed to do so; the resultant abandonment was held by the Court to be unfair in the circumstances. Similarly, in Kabende v. Canada, there was an administrative error on the part of claimant's counsel which meant that updated contact information did not reach the IRB; while noting that the Board could not be faulted, the court nonetheless allowed the claimant's application to reinstate their claim.
 * Leeway should be shown where a claimant has supplied updated contact information to IRCC or CBSA, even if not the IRB: In Karagoz v. Canada, the claimant had mistakenly provided his change of address to CBSA but not the IRB; in the result, the court allowed the judicial review of a refusal to open a claim that had been declared abandoned. In that case, the court held that the claimant demonstrated a continuing bona fide intention to pursue his claim and the only reason he did not receive his Notice to Appear was a mistake.

 * Whether the claimant has complied with the Division's rules:
 * Whether the claimant has complied with the requirements of the RPD rules to provide information and forms: As the Board indicated in its public commentary to the previous version of the rules, "Where a party, whether represented by counsel or not, is not prepared to proceed, the Division may determine that the proceeding before it has been abandoned if the Division is of the opinion that the party is in default in the proceedings". The Irwin Law text Refugee Law notes that "although technically a claim may be declared abandoned for any default, including the failure to file documents, only the most serious defaults will generally lead to abandonment proceedings." As a result, where a party attends their hearing but is manifestly unready to proceed, for example without a complete BOC form that has been appropriately interpreted to them, then this is a factor that may rightfully point towards abandonment. Singh v. Canada was one such case in which the court upheld an IRB decision to declare a claim abandoned on the basis that the PIF was incomplete because it lacked an interpreter's declaration, despite the Board previously having advised the claimant of this deficiency and having provided time to rectify it. Similarly, RPD Member Kivlichan concluded in 2012 that a claim should be abandoned because, inter alia, required information about family members was not included in the PIF form.
 * Whether the claimant has complied with the Rules about providing medical documents, where applicable: In Parveen v. Canada, the court upheld a Board decision that this factor pointed towards the claimant having abandoned their claim, noting that the claimant lacked diligence in pursuing her claim by not presenting the required medical documentation. Even where a claimant's medical certificate does not comply with Rules 65(5)-(7), this is but one factor that the Board must consider in a global assessment of "any relevant factors". For example, the court commented as follows in Nanava v. Canada: "Under the circumstances, I am not satisfied the Member considered any factors other than the purported inadequacy of Mr. Nanava’s medical evidence. Such an approach is inconsistent with the broad language of subsection 65(4) of the Rules and with the jurisprudence."
 * The extent to which the claimant has submitted documents to support the case: In Parveen v. Canada, the court upheld a Board decision that this factor pointed towards the claimant having abandoned their claim, noting that "While her claim has been pending for over six years, the Applicant has not submitted any supporting documents and has not given notice of any witnesses to be called. When asked why she had not submitted any supporting documents, the Applicant answered: 'They are … they are there. If you give me two to three weeks, yes, I can come along with those documents' In these circumstances, it was reasonable for the RPD to find that the Applicant was not ready to pursue her claim on the date originally scheduled or on the date of the show cause hearing." In contrast, in Nanava v. Canada the claimant's counsel appeared at the claimant's abandonment hearing with documents pertaining to a substantive part of Mr. Nanava’s refugee claim in order to reiterate his client’s intent to pursue his claim. The court held that this was a factor pointing towards the claimant's continuing interest in pursuing his claim with diligence.

Whether the claimant is ready to start or continue the proceedings

 * The mere fact that the claimant is now willing and able to proceed is not, in itself, sufficient to ensure that the claim is not declared to have been abandoned. The focus of the abandonment decision should be on the reasons why the claimant failed to comply in a timely way with the requirements of the Act and the Rules.

RPD Rules 65(5)-(7) - Medical reasons
Medical reasons (5) If the claimant’s explanation includes medical reasons, other than those related to their counsel, they must provide, together with the explanation, the original of a legible, recently dated medical certificate signed by a qualified medical practitioner whose name and address are printed or stamped on the certificate.

Content of certificate (6) The medical certificate must set out (a) the particulars of the medical condition, without specifying the diagnosis, that prevented the claimant from providing the completed Basis of Claim Form on the due date, appearing for the hearing of the claim, or otherwise pursuing their claim, as the case may be; and (b) the date on which the claimant is expected to be able to pursue their claim.

Failure to provide medical certificate (7) If a claimant fails to provide a medical certificate in accordance with subrules (5) and (6), the claimant must include in their explanation (a) particulars of any efforts they made to obtain the required medical certificate, supported by corroborating evidence; (b) particulars of the medical reasons included in the explanation, supported by corroborating evidence; and (c) an explanation of how the medical condition prevented them from providing the completed Basis of Claim Form on the due date, appearing for the hearing of the claim or otherwise pursuing their claim, as the case may be.

This rule about providing medical certificates is waived during the Covid-19 pandemic
Until further notice, as a result of Covid-19, where the RPD Rules contain a requirement to provide a medical certificate, this requirement as well as the requirement to explain why there is no medical certificate, is waived. However, even though a medical certificate need not be provided, the same content that would ordinarily be expected in a medical certificate should nonetheless be provided, albeit just not in the form of a formal medical note.

Rule 65(6)(a): Does the medical certificate set out the particulars of the medical condition?
Rules 65(6) requires that a claimant provide a medical certificate which sets out the particulars of their medical condition, without specifying the diagnosis, that prevented the claimant from pursuing their claim. The Board should assess the sufficiency of the reasons offered in light of the test above, namely which the claimant is diligently pursuing their claim. So, for example, in Uandara v. Canada, the claimants, residing in Edmonton, provided a doctor’s note saying that the female Applicant “probably should not be flying on an airplane to Toronto at this time.” The court held that this would not explain why the claimants could not attend the hearing by videoconference given that the claimants had been advised that they did not need to travel to Toronto for the hearing, that their counsel was participating in the hearing by videoconference, and that the claimant were told that they could participate from Edmonton by videoconference. The court noted that "There is no explanation from the Applicants, or anyone else, as to why they did not ask to attend by videoconference. They simply informed the Board that they would not be attending the hearing and the doctor’s note they eventually provided only speaks to air travel." As such, this is an example of where the claimant's medical condition, even if accepted, did not indicate why the claimant was prevented from appearing for the hearing of the claim. This is an example of the way in which Rule 65(6)(a) requires a medical certificate, but then establishes a legal test for assessing whether the medical reasons offered are sufficient to explain the claimant's non-participation in the hearing.

Rule 65(6)(b): When will a medical certificate have adequately stated when the claimant is expected to be able to pursue their claim?
Rule 65(6)(b) indicates that a claimant must provide a medical certificate which sets out the date on which the claimant is expected to be able to pursue their claim. This issue arose in Guo v. Canada, the applicant’s hearing before the RPD was scheduled to take place on January 27, 2014. On January 23, 2014, applicant’s counsel requested that the hearing be postponed because the applicant was sick. In support of this request, counsel filed a letter from the applicant’s doctor dated January 23, 2014, indicating that the applicant: (i) had bronchitis and possibly hypertension, (ii) was prescribed antibiotics and cough syrup, and (iii) told his doctor that he had a fever on the night on January 22, 2014. The doctor's letter included a recommendation that the claimant stay home for one week. The RPD concluded that the claimant had abandoned his claim and that the medical note in question was deficient by failing to indicate the date on which the applicant was expected to be able to pursue the claim. On judicial review, the court concluded that the RPD acted unreasonably in so concluding. The court commented on this issue this way: "It follows that the end of that week indicates the date on which the applicant could be expected to be available. To ask for more seems pedantic." As such, panels of the Board should not adopt an excessive technical or pedantic approach to the application of this rule. In contrast, in Parveen v. Canada, the claimant submitted a prescription and blood test results, documents which did not explain when the claimant would be able to pursue her claim. The court upheld the Board's determination that these documents did not comply with the requirements of Rule 65.

Rule 65(7)(a): The claimant must provide particulars of any efforts they made to obtain the required medical certificate
A claimant is to provide a medical certificate that complies with the requirements set out in rules 65(5) and 65(6). If they do not do so, they must include in the explanation that they provide to the Board particulars of any efforts they made to obtain the required medical certificate, supported by corroborating evidence. Where they fail to do so, this will point against the claimant having sufficiently explained why they were nota able to attend their hearing and will point towards them having abandoned their claim. For example, in Parveen v. Canada, the claimant had not supplied the required medical certificate and "no explanation was submitted as to why the Applicant was unable to provide a medical certificate containing the required information in the form prescribed by subrules 65(5) and 65(6) of the RPD Rules." The court concluded that this supported the reasonableness of the Board's conclusion that the medical evidence offered was not sufficient to explain why the claimant had been unable to attend the hearing.

Rule 65(7)(c): The claimant must explain how their medical condition prevented them from pursuing their claim
The mere fact that the claimant has received some medical attention is insufficient to explain why they could not pursue their claim or attend at a hearing. In Parveen v. Canada, the claimant had provided a prescription and the results of a blood test, both dated February 15, 2018. The court held that "these documents do not explain why the Applicant was not able to attend on February 16, 2018". The Board held that the medical evidence offered was not sufficient to explain why the claimant had been unable to attend the hearing. The court concluded that this was a reasonable finding on the evidence.

How should the panel determine whether the medical reasons offered are sufficient?
The documents offered should include details which "explain why the [claimant] was not able to attend" their hearing. When will the medical documents offer a sufficient explanation? Some principles emerge from the caselaw:

 * A panel of the Board should not second-guess a doctor's recommendations: In Guo v. Canada, the claimant's doctor had diagnosed the claimant with acute bronchitis and had recommended that he stay home for a week. The Board concluded that the claimant's information about his medical condition was not sufficient to substantiate that the claimant would have been unable to participate in the hearing. The court stated that it was "not satisfied that the situation required that the applicant go against his doctor’s recommendation". As such, where a doctor has provided a recommendation (in this case, to stay home) the Board should not second-guess that recommendation without good reason.
 * Even where the technical requirements of the above rules on medical documents have not been complied with, this is just one factor to consider under 65(4) and should not automatically result in the claim being declared abandoned: For example, in Nanava v. Canada, the court commented that "the Member unreasonably fixated upon the technical deficiencies of Mr. Nanava's medical certificates and failed to consider other relevant factors in assessing whether Mr. Nanava had abandoned his claim. As noted above, such an approach is contrary to subsection 65(4) of the Rules and the jurisprudence. As a result, the Decision is unreasonable."
 * The existence of a medical condition does not itself excuse a claimant from taking reasonable steps to proceed: In Fetni v. Canada, the claimant had asserted that he had memory problems and he presented a psychological report. The court found that it was not unreasonable for the CRDD to find that the claimant should have taken steps necessary to ensure he would not forget the hearing date.

RPD Rule 65(8) - When the Division must start or continue the proceedings if it decides not to declare the claim abandoned
Start or continue proceedings (8) If the Division decides not to declare the claim abandoned, other than under subrule (2), it must start or continue the proceedings on the day the decision is made or as soon as possible after that day.

At what point should the Board conclude that a claimant is not late, but instead is not appearing for their hearing?
The Chairperson Guidelines 7 Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division state that "The hearing will begin promptly as scheduled. Participants must be present on time and ready to proceed by the scheduled start time. If a party or counsel appears within 15 minutes after the scheduled start time, the member will note the explanation for the late arrival on the record." The guidelines go on to state that "after 15 minutes, if it is a claimant who has not appeared, the member will either adjourn the hearing or the claimant will have to appear at a special hearing to explain why the claim should not be declared abandoned." The logic of this 15-minute presumption is bolstered by the fact that the Notice to Appear instructs claimants and counsel to arrive half an hour prior to the actual start time of the hearing (15 minutes in the case of virtual hearings), so if a party has not arrived 15 minutes after the start-time of the hearing, they are in that sense 45 (30) minutes late. Nonetheless, where a claimant advises the Board of their anticipated lateness or otherwise appears shortly afterwards, it may be possible for the Board to proceed nonetheless.

This rule supplants the following earlier guidance from the Board, which may nonetheless continue to have some persuasive authority: "Where there is no information available about the claimant’s failure to appear, it is usually practical to wait a while before initiating the abandonment process, as it may turn out that the claimant simply was late for the hearing. There is no rigid time limit which separates 'being late' from 'failing to appear at the time set for a hearing'. Good judgment is called for in deciding whether to initiate abandonment proceedings in such a case."

Front-End Security Screening (FESS) considerations where a claim is not declared abandoned and will then proceed to hearing
The Board's Instructions Governing the Management of Refugee Protection Claims Awaiting Front-end Security Screening state that "Abandonment hearings may proceed notwithstanding that confirmation of security screening has not been received. Should a claimant successfully argue that their claim should not be declared abandoned, the matter will then be scheduled for hearing in accordance with these Instructions."

By region
Of all dispositions for principal claimants in the most recent year for which data are available (2018), about 6.3% of dispositions (claims being accepted, rejected, withdrawn, abandoned, etc.) were abandonments in each of the Central (Toronto) and Eastern (Ottawa and Montreal) regions, but only 2.1% of claims were abandoned in the Board's Western region, which runs from BC to Manitoba:

By country
Claims from certain countries appear to have disproportionately high (e.g. India, Mexico) or low (e.g. Turkey, Iran) abandonment rates:

By counsel
About half of all claimants that abandon their claims do not have counsel (398 out of 801 principal claims declared abandoned in 2018). In contrast, overall about 94% of claimants are represented in their new system proceedings before the Board. For example, of the 44 abandonment hearings held in British Columbia in 2013, claimants were represented by counsel at only 16 (or 36 percent). The rate at which claims were declared abandoned was almost twice as high for unrepresented claimants (21 out of 28, or 75 percent) than those who had counsel (7 out of 16, or 44 percent).

There are a number of hypotheses and explanations about why claimants without counsel are disproportionately likely to abandon their claims, including:

 * The importance of a relationship of trust with counsel in encouraging vulnerable claimants to continue with the process: Part of this may relate to having a trusting relationship with counsel that guides the claimant through the process. In an academic research study, one lawyer interviewed commented on this issue as follows: "establishing a trusting relationship is more than just, you know, something to check off the list. It’s the foundation of your legal representation because vulnerable clients tend to drop off the map if they don’t trust their lawyer." Some lawyers note that "It’s very difficult for people who have low or little education to navigate a complex legal system."
 * Counsel may be unwilling to take cases with a low chance of success: In one UNHCR report, they note that "there is some controversy relating to statistics for Roma asylum seekers, but it is clear that the success rate is low for claimants from Hungary and that a high number have also abandoned (or withdrawn) their claims over the last couple of years. One may presume that implicit in the governmental view on the abandonment/withdrawal rate is that these claimants are not represented (i.e. legal counsel would presumably want to win cases they accept to represent)."
 * Claimants may be denied legal aid based on an assessment of the merit of their claim: Another aspect is that claimants without counsel may be disproportionately likely to have been rejected by legal aid on the basis that their claim lacked merit, and thus they may be disproportionately likely to abandon their claim for reasons associated with likelihood of success, with on UNHCR report stating "it is likely that many unrepresented claimants were refused legal aid following a “chance of success” screening and that their claims may have been relatively weak or unfounded."
 * Unrepresented claimants may be more likely to miss deadlines for submitting paperwork.


text:
Canadian Refugee Procedure/RPD Rule 66 - Notice of Constitutional Question

RPD Rule 66 - Notice of Constitutional Question
The text of the relevant rule reads: Notice of constitutional question 66 (1) A party who wants to challenge the constitutional validity, applicability or operability of a legislative provision must complete a notice of constitutional question.

Form and content of notice (2) The party must complete the notice as set out in Form 69 of the Federal Courts Rules or any other form that includes (a) the party’s name; (b) the Division file number; (c) the date, time and location of the hearing; (d) the specific legislative provision that is being challenged; (e) the material facts relied on to support the constitutional challenge; and (f) a summary of the legal argument to be made in support of the constitutional challenge.

Providing notice (3) The party must provide (a) a copy of the notice to the Attorney General of Canada and to the attorney general of each province of Canada, in accordance with section 57 of the Federal Courts Act; (b) a copy of the notice to the Minister; (c) a copy of the notice to the other party, if any; and (d) the original notice to the Division, together with a written statement indicating how and when the copies of the notice were provided under paragraphs (a) to (c), and proof that they were provided.

Time limit (4) Documents provided under this rule must be received by their recipients no later than 10 days before the day on which the constitutional argument is made.

Commentary
The RPD possesses jurisdiction to decide questions of law pursuant to subsection 162(1) of the Act, which provides as follows: Constitutional questions must be raised while the Board retains jurisdiction to consider a claim. A claimant cannot return to the Board to raise a constitutional issue after having lost a judicial review at the Federal Court because of s. 170.2 of the Act which provides that: Similarly, a claimant cannot raise a constitutional issue before a panel of the Refugee Protection Division regarding a provision of the IRPA that the RPD does not have the jurisdiction to consider or apply.

There is no need for notice of constitutional question in a case where the remedy sought is something other than a judgment that a statute or regulation is invalid, inapplicable, or inoperable on constitutional grounds. Other constitutional questions do not necessarily require a notice when, for example, a constitutional provision is raised to ensure the presumption of compliance with constitutional law generally.