Canadian Refugee Procedure/RPD Rule 54 - Changing the Date or Time of a Proceeding

The Act, Regulation, and Rules all include provisions that are relevant to the (re)scheduling of proceedings before the Board. Rule 54 is the relevant rule in the RPD Rules for changing the date or time of a proceeding. It operates against the background of section 159.9 of the regulations and section 162 of the Act, which follows.

IRPA Section 162

Sole and exclusive jurisdiction
162 (1) Each Division of the Board has, in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction.

Procedure
(2) Each Division shall deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit.

For discussion of this provision, see: Canadian Refugee Procedure/Board Jurisdiction and Procedure.

Relevant Immigration and Refugee Protection Regulation Provisions

Hearing Before Refugee Protection Division

Time limits for hearing
159.9 (1) Subject to subsections (2) and (3), for the purpose of subsection 100(4.1) of the Act, the date fixed for the hearing before the Refugee Protection Division must be not later than
(a) in the case of a claimant referred to in subsection 111.1(2) of the Act,
(i) 30 days after the day on which the claim is referred to the Refugee Protection Division, if the claim is made inside Canada other than at a port of entry, and
(ii) 45 days after the day on which the claim is referred to the Refugee Protection Division, if the claim is made inside Canada at a port of entry; and
(b) in the case of any other claimant, 60 days after the day on which the claim is referred to the Refugee Protection Division, whether the claim is made inside Canada at a port of entry or inside Canada other than at a port of entry.

Exclusion
(2) If the time limit set out in subparagraph (1)(a)(i) or (ii) or paragraph (1)(b) ends on a Saturday, that time limit is extended to the next working day.

Exceptions
(3) If the hearing cannot be held within the time limit set out in subparagraph (1)(a)(i) or (ii) or paragraph (1)(b) for any of the following reasons, the hearing must be held as soon as feasible after that time limit:
(a) for reasons of fairness and natural justice;
(b) because of a pending investigation or inquiry relating to any of sections 34 to 37 of the Act; or
(c) because of operational limitations of the Refugee Protection Division.

Regulation 159.9(1)(a): Hearings are to be held within 30 or 45 days for claimants from Designated Countries of Origin, but no such countries are designated

Section 159.9(1) of the Regulation establishes mandatory timelines for scheduling refugee hearings. Section 159.9(1)(a) establishes timelines for claimants referred to in subsection 111.1(2) of the Act, which is the regime for designation of countries of origin established in the Act. In effect, the regime allows the Minister to designate particular countries of origin where there is a low success rate for claims at the Division and/or the country is one where there is an independent judicial system, basic democratic rights and freedoms are recognized, and mechanisms for redress are available if those rights or freedoms are infringed, and civil society organizations exist. For the time being, this provision is something of a dead letter since the Minister has not designated any countries under this provision. As such, the operative provision in s. 159.9 of the Regulation is 159.9(1)(b), which provides that the date fixed for a hearing before the Refugee Protection Division must be not later than 60 days after the day on which the claim is referred to the Refugee Protection Division.

Regulation 159.9(1)(b): Hearings are to be held within 60 days of the claim being referred to the RPD, but this provision is not currently being followed

Section 159.9(1)(b) of the Regulation provides that the date fixed for a hearing before the Refugee Protection Division must be not later than 60 days after the day on which the claim is referred to the Refugee Protection Division. This provision, too, is something of a dead letter since the policy of the referring officers and the Board is not to schedule such cases within 60 days of referral. Instead, because of s. 159.9(3)(c) ("operational limitations of the Refugee Protection Division") the practice is to not advise claimants of a date and time on which their claim is scheduled when the matter is referred to the Refugee Protection Division, but instead to schedule their claim at a later point, generally giving them 2 to 3 months notice of the hearing then. The Board announced this as follows in a press release in 2018:

The Immigration and Refugee Board of Canada (IRB) is changing its scheduling practice for refugee hearings and will now be hearing claims primarily in the order in which they were received. ... In December 2012, time limits for scheduling were incorporated into regulations. The result was that new cases had to be prioritized over old ones. The regulations allow for an exception to the time limits due to the operational limitations of the Board. With rising intake, the Refugee Protection Division (RPD) has been obligated to remove a certain percentage of hearings from its schedule under this exception because it does not have the capacity to hear them.

The IRB stated at that point that the expected wait time for status determination under the new schedule was expected to be approximately 20 months. By January 2020, the average wait for a hearing at the Refugee Protection Division had grown to 22 months. The Federal Court has noted that given that the Board is generally not following the timelines expressed in the Regulations, the timelines expressed therein are of limited relevance:

It is not clear to me why the RPD expressed a concern about the need for a hearing within 30 days in accordance with s 159.9(1) of the Regulations when it was operating well outside of those parameters in accordance with the exceptions found in s 159.9(3). Indeed, Mr. Gallardo’s hearing was initially scheduled to be heard more than eight (8) months after referral to the RPD. This history detracts from the rationale for a strict adherence to fast-track scheduling and effectively renders the RPD discussion of it irrelevant.

Regulation 159.9(1): The Board will provide priority scheduling for certain types of claims

The Board has stated that notwithstanding the general "First In First Out" scheduling policy noted above, it may provide priority scheduling for certain types of claims, including:

• Unaccompanied minors: Chairperson Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues provides that "The claim should be given scheduling and processing priority because it is generally in the best interests of the child to have the claim processed as expeditiously as possible. There may be circumstances, however, where in the best interests of the child the claim should be delayed. For example, if the child is having a great deal of difficulty adjusting to Canada, he or she may need more time before coming to the CRDD for a hearing." A 2019 audit of the system by the Auditor General found that the Immigration and Refugee Board of Canada was able to prioritize protection decisions for unaccompanied minors. For the 628 claims made by unaccompanied minors over their audit period, most had hearings within 60 days and received protection decisions an average of two months earlier than other claims.
• Vulnerable persons: Chairperson Guideline 8: Procedures With Respect to Vulnerable Persons Appearing Before the IRB states that vulnerable persons may be given scheduling priority in appropriate cases. Guideline 8 underlines that “the uncertainty and anxiety caused by delay can be particularly detrimental to some vulnerable persons.” Therefore, it is possible for the Board to grant priority processing as a procedural accommodation under Guideline 8.
• Claimants with family members in dangerous and precarious situations in their home country: The Division has control over its hearing schedule and, in the particular circumstances of a case, it may find on the evidence before it that the situation of family members justifies an earlier hearing date in priority to other claims. That said, many claimants may face difficulties relating to family circumstances in their countries of origin, and the Division must be fair to all claimants who are waiting for their claim to be heard. Therefore, while the situation of family members by itself may not be determinative in most cases, it remains a factor that can assist in appreciating the nature of a claimant’s vulnerability and in determining whether priority scheduling should be granted.
• Board scheduling strategies to ensure integrity and efficiency: The Board states that it may also make exceptions to its "First In First Out" policy for certain claims or groups of claims where the Board decides to implement specific scheduling strategies to ensure the integrity and efficiency of the refugee determination process.

For more detail, see: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#A party is entitled to a hearing without unreasonable delay that causes serious prejudice.

Regulation 159.9(3)(b): The process for investigations and inquiries related to sections 34 to 37 of the Act is referred to as the FESS process

The sections of the Act referred to in Regulation section 159.9(3)(b) are those at Immigration and Refugee Protection Act, ss. 34-37. The provisions in question are lengthy and verbose, and for that reason, they are not reproduced here. The Board has a policy which guides its actions to await such inquiries, the Instructions Governing the Management of Refugee Protection Claims Awaiting Front-End Security Screening. The instructions read as follows:

In those cases where confirmation of security screening has not been received in time for the initially scheduled hearing, the IRB will remove the hearing from the schedule and set a new date and time for the hearing as soon as feasible upon confirmation of the security screening. Parties will be advised in accordance with the process outlined in [the Notification section of the Instructions].

In those cases where confirmation of security screening has not been received at six (6) months from the date of referral, the RPD will normally proceed to schedule and hear the claim unless the CBSA files an application change the date and time that is granted by the IRB. In considering such an application, the RPD will provide an opportunity to the claimant to make representations.

In those cases where the IRB grants a delay and confirmation of security screening is subsequently received, it will be rescheduled as soon as feasible.

In cases where confirmation of security screening remains pending at twelve (12) months from the date of referral, the RPD will convene a conference with the claimant, counsel and Minister’s counsel and may fix a date for a hearing.

CBSA states that prior to a hearing at the IRB, a front end security screening (FESS) is completed on all adult asylum claimants. The service standard for FESS is that CBSA is to complete 80% of front-end screening within 55 days.

Comparison of the interpretation of the different exceptions to the mandatory timelines

If found eligible, a hearing date is to be set within 30 days for claimants from a designated country of origin, and within 60 days for others. These timelines are set out in s.159.9 of the Immigration and Refugee Protection Regulations and they are mandatory. The section sets out the situations in which there may not be compliance with the timelines:

(a) for reasons of fairness and natural justice;

(b) because of a pending investigation or inquiry relating to any of sections 34 to 37 of the Act; or

(c) because of operational limitations of the Refugee Protection Division.

While the Board appears to be taking a very restrictive view of timelines set out in s.159.9(1)(a) of IRPR (see commentary on Rule 54), the BC Public Interest Advocacy Centre has noted that the Board’s interpretation of 159.9(1)(b) is much more liberal, and there is a broad policy of providing time for the Minister to engage in initial security screening. The Minister does not need to apply for more time, as the Board will not proceed with a hearing in the first six months if the Minister has not provided confirmation that front end security screening is complete:

In those cases where confirmation of security screening has not been received in time for the initially scheduled hearing, the IRB will remove the hearing from the schedule and set a new date and time for the hearing as soon as feasible upon confirmation of the security screening. ... In those cases where confirmation of security screening has not been received at six (6) months from the date of referral, the RPD will normally proceed to schedule and hear the claim unless the CBSA files an application to change the date and time that is granted by the IRB.

In Alhaqli v. Canada the court was asked to consider this issue. In that case, the applicants submitted that the Board's process of automatically postponing hearings where FESS has not been completed breaches procedural fairness because the policy gives rise to a reasonable apprehension of institutional bias by granting the Minister a cancellation of a refugee hearing without following the procedures for the scheduling and postponement of refugee claims as provided in the IRPA, Regulations, and Rules. As a result, the claimants argued that the Minister is provided preferential treatment via an automatic postponement whenever the CBSA has not performed its statutory duties in accordance with the prescribed time-frames, because the Minister neither has to establish that the legislative and regulatory criteria for a postponement have been satisfied nor move for the relief sought. In that case, the court declined to rule on the issue, holding that the matter as raised was moot. The fact that the Board may treat the Minister and claimants differently in this respect appears to originate from the language of the regulation. There are many examples of such differential treatment in the IRPA. For example, in Muheka v. Canada the Immigration Appeal Division considered an argument that the fact that under the statute the Minister has a de novo appeal at the IAD but a claimant does not offends the Canadian Bill of Rights. The panel accepted the Minister’s submissions that the Respondent cannot compare himself to the Crown and demand equal treatment as if the Crown were an individual, relying on the following Charter s. 15(1) jurisprudence:

With respect to the issue of whether the appellants have received unequal treatment, it must be apparent that the Crown cannot be equated with an individual. The Crown represents the State. It constitutes the means by which the federal aspect of our Canadian society functions. It must represent the interests of all members of Canadian society in court claims brought against the Crown in right of Canada. The interests and obligations of the Crown are vastly different from those of private litigants making claims against the Federal Government. Henry J., in my opinion, properly applied the decision in R. v. Stoddart, supra. I agree with the words of Tarnopolsky J.A., speaking for the court in that case, at pp. 362–63, where he stated:  The Crown is not an “individual” with whom a comparison can be made to determine a s. 15(1) violation.

The Board's actions on its own motion (ex proprio motu)

Rule 54, the RPD rule on changing the date and time of proceedings discussed herein, concerns applications from parties to change the date or time of a proceeding. The Board also has the power to act on its own motion to reschedule a matter, which is referred to as its power to act ex proprio motu. Where the Board so acts, it must act in a manner that is consistent with the requirements of the IRPA and the regulation, but Rule 54 does not apply to the Board's decision, since that Rule applies only to applications from parties.

In a 2019 audit of the refugee system, the Auditor General concluded that about 65% of hearings were postponed at least once before a decision was made. The reasons for the postponements indicate that they are mostly done on the Board's own motion:

Reasons for postponed hearings	Percentage of postponed hearings
Board member unavailable (operational limitations)	49%
Claimant or claimant’s counsel unavailable	14%
Security screening results still pending	10%
Lack of time to complete a hearing	6%
Need to hear family members’ claims together or separately	5%
Waiting for documents or late disclosure of documents	4%
Interpreter unavailable	3%
Other	9%

The Board may have an obligation to reschedule a matter on its own motion in certain circumstances

There will be circumstances in which fairness requires the Board to act on its own motion to reschedule a matter. In Alvarez v. Canada, the Court found a breach of natural justice in circumstances where the tribunal proceeded despite the fact that it was clear that the applicant was not understanding the proceedings. This was so even though the claimant had not formally requested an adjournment at the time of the hearing. However, the mere fact that a claimant is proceeding without counsel does not mean that the panel is obliged to postpone the proceedings and insist upon them obtaining counsel; claimants have the right to represent themselves. The court reached this conclusion in Tandi v. Canada, despite counsel's argument that "given Mr. Tandi’s age [22] and risk to his life" the panel should have insisted upon the claimant obtaining counsel. For more detail, see: Canadian Refugee Procedure/Counsel of Record#A panel may be obliged to postpone a hearing to give a claimant an opportunity to obtain counsel upon request in certain circumstances.

Even when acting on its own motion, the Board should consider relevant Board guidelines

When exercising their discretion, panels of the Board should considered any applicable guidelines issued by the Chairperson of the Board. The Chairperson is empowered to issue written guidelines on any matter within his or her purview, including the procedure to be followed by the RPD in fixing the time of a hearing: ss. 159(1)(h) and 159(1)(f) of the IRPA:

Chairperson
159 (1) The Chairperson is, by virtue of holding that office, a member of each Division of the Board and is the chief executive officer of the Board. In that capacity, the Chairperson
(f) apportions work among the members of the Board and fixes the place, date and time of proceedings;
(h) may issue guidelines in writing to members of the Board and identify decisions of the Board as jurisprudential guides, after consulting with the Deputy Chairpersons, to assist members in carrying out their duties;

The most relevant such guideline is the Chairperson Guideline 6: Scheduling and Changing the Date or Time of a Proceeding. Furthermore, the Board's guidelines on vulnerable persons may be relevant: Canadian Refugee Procedure/Guideline 8 - Concerning Procedures with Respect to Vulnerable Persons Appearing Before the Immigration and Refugee Board of Canada.

RPD Rule 54(1)-(3) - Process for making an application to change the date or time of a proceeding

The text of the relevant rule reads:

Changing the Date or Time of a Proceeding

Application in writing
54 (1) Subject to subrule (5), an application to change the date or time of a proceeding must be made in accordance with rule 50, but the party is not required to give evidence in an affidavit or statutory declaration.

Time limit and content of application
(2) The application must
(a) be made without delay;
(b) be received by the Division no later than three working days before the date fixed for the proceeding, unless the application is made for medical reasons or other emergencies; and
(c) include at least three dates and times, which are no later than 10 working days after the date originally fixed for the proceeding, on which the party is available to start or continue the proceeding.

Oral application
(3) If it is not possible for the party to make the application in accordance with paragraph (2)(b), the party must appear on the date fixed for the proceeding and make the application orally before the time fixed for the proceeding.

Terminology about adjournments and postponements

The terminology of this rule is that the Board is entertaining and application to change the date and time of the proceeding. Nonetheless, many terms borrowed from court proceedings seep into such decisions. For example, postponements (changing the date of a hearing prior to any evidence being heard), adjournment (adding a new day to a proceeding once some evidence has been heard), and recesses (a break in the proceeding).

Roles of Board, parties, and Minister's officers in scheduling

The roles of officers for CBSA and IRCC, counsel for the parties, and the ability of the Board to reschedule on its own motion are discussed at the following commentary regarding Rule 3, which concerns initial scheduling decisions: Canadian Refugee Procedure/Information and Documents to be Provided#Roles of officers, parties, and Board in scheduling matters.

Time limit for the written application to change the date or time of the proceeding

As per Rule 54(1), applications to change the date or time of a proceeding are to be made in accordance with Rule 50, which requires that they be made in writing, unless the party could not have applied without unreasonable effort. Per Rule 54(2), such applications must "be made without delay". The Board's public commentary to the previous version of the RPD Rules commented on this requirement, noting that "An application to change the date or time of a proceeding should normally be made in writing and at the earliest opportunity before the proceeding". As per Rule 54(2)(b), such applications must be received by the Division no later than three working days before the date fixed for the proceeding. However, consistent with the requirements of Rule 54(2), this three-day rule is a minimum, not a target to aim for, and if an application can be made prior to that, it should be. According to 54(3) and 54(2)(b) of the Rules, applications less than three days before the hearing should be made orally at the hearing. It is a best practice to make such applications in writing in an event, even if one or two days prior to the hearing, even though parties cannot count on the Board receiving the application prior to the hearing. This is consistent with the Board's commentary to the previous version of the RPD Rules which read: "A party who wants to make an application orally for a change of date or time of the proceeding should make every effort to notify the Division and any other party of his or her intention to apply and the reasons for that request. This should be done in writing and at the earliest opportunity before the proceeding."

When an oral application should be allowed at the hearing

According to Rule 54(2)(b), an application may be made orally at the hearing where there is a medical reason "or other emergency" which is the cause of the application. As the Court stated in Guylas v. Canada, this exception to the requirement to apply in writing applies where the party "could not have applied without unreasonable effort". Some guidance on this provision was provided in Freeman v. Canada, where the claimant's ground for an adjournment was a recent change in counsel, allegedly as a result of the incompetence of prior counsel, which necessitated witness preparation and the additional filing of documents. The court held in that case that this did not constitute a medical or other emergency which would warrant an oral application for an adjournment. As such, the request for an adjournment was not properly before the Board.

History of requirement to provide three dates and times when the party will be available

A draft of this rule originally required counsel to provide three days when they would be available within five days of the original hearing. This requirement was modified as a result of stakeholder feedback: "Several respondents expressed concern regarding the tight timelines in the rule pertaining to an application for a change of date or time of a proceeding. The rule required that the claimant, when requesting a change of date or time, provide three days on which they would be available to proceed which fall within five working days after the date originally fixed for the proceeding. Respondents felt that this was unrealistic, particularly given the anticipated busy schedules of counsel." Noting this concern along with the overall scheme of the IRPA and the IRPR as well as the scheme of the RPD Rules, the IRB has changed the rule such that claimants provide three dates within a window of ten working days. Similarly, the rules state that the new date fixed by the Division must be no later than ten working days, or as soon as possible thereafter. This compares to the previous version of the RPD Rules in which the obligation on counsel was that "A party applying for a change of date or time of a proceeding must give a minimum of six alternative dates within the following three months, or such other time period as the Division specifies, when the party is available to proceed."

That said, despite the requirement that counsel provide such dates, it is rare that a hearing that is being rescheduled will be rescheduled within 10 days of the old date. According to a 2019 Auditor General report, fewer than 10% of hearings where the date or time was changed were rescheduled within this 10-day timeframe. The Board's schedule is generally fully booked for at least three months ahead. As a result, when a claim is postponed the usual delay is of several months.

RPD Rule 54(4) - Factors to consider

Factors
(4) Subject to subrule (5), the Division must not allow the application unless there are exceptional circumstances, such as
(a) the change is required to accommodate a vulnerable person; or
(b) an emergency or other development outside the party’s control and the party has acted diligently.

History of this provision

The old pre-2012 RPD Rules required the RPD to consider numerous factors in deciding whether to grant a change of date or time. Specifically, section 48 of the prior RPD Rules set out eleven factors that were to be considered in dealing with a request to change the time of the hearing:

(a) in the case of a date and time that was fixed after the Division consulted or tried to consult the party, any exceptional circumstances for allowing the application;

(b) when the party made the application;

(c) the time the party has had to prepare for the proceeding;

(d) the efforts made by the party to be ready to start or continue the proceeding;

(e) in the case of a party who wants more time to obtain information in support of the party’s arguments, the ability of the Division to proceed in the absence of that information without causing an injustice;

(f) whether the party has counsel;

(g) the knowledge and experience of any counsel who represents the party;

(h) any previous delays and the reasons for them;

(i) whether the date and time fixed were peremptory;

(j) whether allowing the application would unreasonably delay the proceedings or likely cause an injustice; and

(k) the nature and complexity of the matter to be heard.

However, the current Rules, last amended on December 15, 2012, do not include that list of factors. Instead, as set out above, the Rules provide that the RPD must not change the date or time unless there are exceptional circumstances.

Board's general approach to (re)scheduling

The guiding principle, as noted in Mohammed v. Canada, is that the exercise of discretion has been severely limited under the revised RPD Rules, with strict timelines in place to obtain an order changing the date or time of a proceeding. As the RPD-specific portion of the Chairperson’s Guideline 6: Scheduling and Changing the Date or Time of a Proceeding states, "The RPD expects parties and their counsel to be ready to proceed on the date and time scheduled for the hearing. Applications to change the date or time of the hearing will be granted only in exceptional circumstances and, where the application would cause the hearing to be heard outside the statutory timeframes, only if the evidence indicates that it is necessary in order to conform with the principles of natural justice.

The Board must consider all relevant factors when determining whether there are exceptional circumstances, not merely the two examples listed above

The Federal Court commented in Tung v. Canada that in exercising its discretion to reschedule a case, the Board must generally take into account all relevant factors. This will include the exceptional circumstances listed in Rule 54(4) (accommodating a vulnerable person or an emergency or other development outside of a party's control where the party has acted diligently) as well as any other relevant factors. Where the Board fails to take into account relevant factors and refuses an adjournment request, it will have acted unreasonably. This is the case even where the Board considers a claimant's vulnerability or whether there was an emergency beyond a party's control. As the court notes in Tung v. Canada, these Rule 54(4) factors are merely examples of exceptional circumstances, not an exhaustive definition of all relevant exceptional circumstances. In that case, the Federal Court concluded that the Board had erred because it "appeared not to consider whether Ms Tung’s personal situation amounted to exceptional circumstances in the broader sense." Furthermore, the panel should consider any relevant exceptional circumstances, both individually and cumulatively. As the Federal Court commented in Gallardo v. Canada, "while any one factor may not [tip] the balance, several factors taken together may [do so]." Per the Federal Court, "all relevant factors should be considered and then weighed against the need for administrative efficiency."

What exceptional circumstances have, and have not, been found to justify an application to change a date and time?

Changes required to accommodate vulnerable persons

Rule 54(4)(a) provides that the Division must not allow an application to reschedule a hearing unless there are exceptional circumstances, such as the change being required to accommodate a vulnerable person. "Vulnerable person" is a defined term in the rules, and per RPD Rule 1 it "means a person who has been identified as vulnerable under the Guideline on Procedures with Respect to Vulnerable Persons Appearing Before the IRB issued under paragraph 159(1)(h) of the Act." As such, the term "vulnerable person" should be used consistently throughout the Canadian refugee status determination regime. What should be considered when determining whether a claimant's vulnerability constitutes an exceptional circumstances justifying the rescheduling of a proceeding? The following are some factors that emerge from past decisions:

• Does the claimant lack representation? The RAD has noted that the guiding principle is that the RPD has an obligation to ensure a fair proceeding, especially where refugee claimants are without representation and suffering from apparent mental health issues. As noted by the Federal Court, the right to counsel is important and can be a determinative factor in the outcome of these decisions, particularly where there is some sense that the applicants are vulnerable: "The failure to have counsel present at the hearing generally leaves the clients at a serious disadvantage when new issues arise, or where the RPD member asks a question that would normally give rise to reply questions by counsel to elucidate a matter." As Justice Rouleau wrote in Biro v. Canada, “the need to fast-track the hearings should not deprive parties of their right to representation and equitable treatment.” The Federal Court of Appeal states that "In the past when the courts have addressed the issue of whether the duty of fairness includes a right to counsel in particular circumstances, one of the primary factors considered was whether the questions are of a legal or complex nature such that the individual's ability to participate effectively without a lawyer was in question" - refugee proceedings will generally be held to meet this complexity threshold, as indicated by Gabor v. Canada.
• Lack of sophistication: In one case, the RAD held that the RPD had erred in refusing an adjournment request from an unrepresented claimant who was unprepared as of the date of the hearing, had been hospitalized for several days prior to the refugee hearing as a result of mental-health issues, and, in the RAD's words, was "clearly unsophisticated as to the appropriate CDT procedures". Similarly, in Galamb v. Canada the court commented on the fact that the applicants were 20 and 21 years of age and had only completed an eight-grade education and noted that in the circumstances they "clearly did not understand what was required of them on several points", which meant that they could not "participate in a meaningful way at the hearing". In Gallardo v. Canada, the court held that a decision on an application to change the date and time of a hearing was deficient because the panel had made no inquiry into Mr. Gallardo’s capacity to represent himself despite counsel’s advice that Mr. Gallardo had not been properly prepared and the claim had been inadequately put together without the assistance of counsel.
• Inability to speak English or French: As noted by the Federal Court, a factor to be considered in such assessments is a claimant's ability in the official language of the proceeding: "In this matter, the applicants were not conversant in English and there appear to have been some issues with respect to the quality of the interpretation". The BC Public Interest Advocacy Centre, in a report on the refugee system, observes that "The ability of a claimant to effectively review hundreds of pages of detailed country condition documentation is often very limited, even in cases where they can read English."
• Past trauma: As the BC Public Interest Advocacy Centre notes in a report, many refugee claimants have experienced severe trauma before arriving in Canada. Some have survived or witnessed torture, killing and other forms of inhumanity. Many live with mental or physical disabilities, often linked to past persecution in the form of injuries or psychological scars that manifest in conditions like post- traumatic stress disorder. They write that "these challenges make it incredibly difficult for some claimants to be able to tell their story in a coherent way and to remain engaged in the system without assistance. Collecting documents, filling out forms, and providing testimony at a hearing are very difficult for many claimants."
• Detained persons: The BC Public Interest Advocacy Centre notes that being detained is a significant barrier to accessing legal representation and preparing for one's claim. At times, however, this factor will point in the opposite direction where, by virtue of being detained, a claimant has been repeatedly provided with counsel to represent them in their detention reviews. For further discussion of this, see the commentary to Rule 30: Canadian Refugee Procedure/Claimant or Protected Person in Custody.
• Mental health challenges: Persons who are deeply depressed, suicidal, experiencing ongoing psychological impacts of trauma, and experiencing other mental health issues may justifiably argue that their ability to prepare for their hearing was impeded by such issues. In appropriate cases, this may justify changing the date of their hearing and providing them with additional time to prepare their claim.

Emergencies and other developments outside of a party's control where the party has acted diligently

Rule 54(4)(b) provides that the Division must not allow an application to reschedule a hearing unless there are exceptional circumstances, such as an emergency or other development outside the party’s control and the party has acted diligently. How has this been considered in past decisions?

• A recent change of counsel, incompetency of old: A recent change of counsel, required by alleged incompetence, which necessitated witness preparation and the filing of further documents does not constitute an emergency: Freeman v. Canada. In contrast, Castroman v. Canada is an example of the exceptional situation where the claimant’s counsel withdrew in the middle of the hearing, leaving the claimant unrepresented. The Court concluded that the Board's decision to deny a request for an adjournment to enable the claimant to find new counsel was unfair in the circumstances.
• Legislative changes potentially rendering a claimant ineligible: Legislative changes may constitute developments outside of a party's control. For example, as a result of legislative changes which render claimants ineligible where they have previously made a claim in another country, the Minister was obliged to redetermine the eligibility of many claimants who have previously been referred to the Board: Canadian Refugee Procedure/Exclusion, Integrity Issues, Inadmissibility and Ineligibility#Section 101(1)(c.1): What evidence the Minister considers regarding refugee claims made to another country.
• Another related legal proceeding: The Federal Court has upheld decisions of the Division to refuse to postpone a proceeding on account of a pending related legal matter, such as an outstanding application for leave and judicial review: Bernataviciute v. Canada.

For requests that involve counsel's availability (or lack thereof) see the following section below: Canadian Refugee Procedure/Changing the Date or Time of a Proceeding#Factors for assessing requests to reschedule a hearing based on the (un)availability of counsel.

Assessments of whether a party has acted diligently

• Inability to obtain counsel at an earlier date for financial reasons: The Division should consider any difficulty a claimant has had obtaining financial assistance to retain counsel when deciding on a request for a postponement. An issue that arises with some regularity is where a claimant lacks money to have counsel represent them and then secures counsel at a late stage in the proceeding. The court commented on one such situation and concluded that it was consistent with a claimant having acted with due diligence as follows: "The male applicant outlined his problems with obtaining funding. I am satisfied that the applicants were acting in good faith at all times – they understood their disadvantage in not being represented and made diligent attempts to obtain counsel. They finally succeeded at the last moment, but given the short time-frame, their lawyer explained the situation to the RPD and requested a short postponement to allow him to represent the applicants."
• Inability to have all evidence at their disposal because it has not been received: When considering a request to postpone because of documents that have been requested, but have not arrived, it is relevant to consider the timeline for when the applicant sought the documents, what they are, how they are relevant, and how long they would take to arrive.

Other exceptional circumstances and considerations about whether such circumstances properly qualify as exceptional

The courts have made the following comments that relate to other exceptional circumstances that may be considered when assessing rescheduling requests:

• Steps the applicant has taken to be represented by counsel: The Board commentary on the previous version of these rules stated: "Where counsel accepts a retainer in a case for which a hearing date has been set, the Division expects counsel to appear on that date, prepared to proceed. Where, for any reason, counsel is unable to appear at a proceeding, counsel is expected to make diligent efforts to arrange for a replacement. Counsel who applies for a change of date or time of a proceeding because counsel is unable to arrange for a replacement or considers the use of a replacement inappropriate is expected to provide particulars." Where counsel does not comply with such obligations and a claimant is abandoned at the last minute, this points towards granting a request to reschedule. For example, in Singh v. Canada the court the decision to deny the adjournment was unreasonable given that the applicant's previous counsel had withdrawn two days before the hearing.
• The number of previous adjournments granted: In Perez v. Canada, the Court set aside a negative determination in a refugee claim due to breach of the right to counsel. The Court found that the tribunal erred because it did not weigh the unfairness of proceeding without counsel against the need for an expeditious hearing in light of the fact that this was the first request for an adjournment.
• Whether the date and time fixed were peremptory: "Peremptory" is a legal term which means "not open to appeal or challenge; final". As noted above, whether the date and time fixed were peremptory used to be one of the explicitly enumerated factors in the previous version of this rule. While the rule has been reformulated, the fact that a hearing date was fixed peremptorily may be relevant to assessing the nature of any circumstances that could justify a change in the date or time of the proceeding and whether they are sufficiently exceptional. While the fact that a hearing has been set down as peremptory is relevant, this fact was not determinative of whether a matter has to proceed on the date set. It is open to the Board to reconsider its earlier determination that a matter would proceed on a peremptory basis, as the Board cannot overlook its procedural fairness obligations.
• The duration of the requested adjournment: The short duration of any requested adjournment is an important factor that points towards granting an adjournment. The Court has commented that when there is some question about the duration that has been requested, one option for the Board is that "any dates that were available could have been stipulated by the RPD on a take-it-or-leave-it basis". In Gallardo v. Canada the Federal Court commented that the fact that counsel had provided several early dates when he could be available was relevant to the request for a postponement and should have been considered by the Board.
• The effect on the immigration system: In overturning decisions, the court has commented that "There is no indication on the record that the RPD could not have accommodated a postponement to the proposed dates or that any other operational considerations would have prevented the case from being reassigned to another date." However, the court has also noted that "In an assignment procedure where dates are set long in advance of their occurrence, the need for a restrictive policy on adjournments can be understood." The court has also noted "The Board hears approximately 25,000 cases a year, and has a tremendous backlog. The applicant must be ready with his evidence on the day scheduled for the hearing."
• Consent of the parties: The Board commented in its previous commentary to the old version of the Rules that "The Division has discretion to allow or not to allow an application for a change of date or time of a proceeding. Consent of the parties is a factor, but it is not the only one that the Division will consider in exercising its discretion. Therefore, parties who consent to a change of date or time should not presume that the application will be allowed."
• When the party made the application: In Gallardo v. Canada the Federal Court held that in deciding a request to change the date and time of a proceeding, the Division should have considered the fact that the adjournment request was made in writing two days before the scheduled hearing, noting that this was a factor that favoured an adjournment. See also commentary at: Canadian Refugee Procedure/RPD Rule 54 - Changing the Date or Time of a Proceeding#When an oral application should be allowed at the hearing.
• The efforts made by the party to be ready to start or continue the proceeding: The Division will consider whether the party making the application has demonstrated good faith and reasonable diligence. For example, in Rrukaj v Canada, the court commented: "If the POE notes contain errors, the applicant has adequate time before the hearing to marshal evidence for the purpose of explaining and correcting the errors. The applicant cannot ignore alleged mistakes in the POE notes, and then when confronted with them at the hearing, expect the Board to adjourn the hearing so that the applicant can obtain allegedly missing but available evidence."
• The knowledge and experience of any counsel who represents the party:
  • Timing of retainer: The timing of obtaining counsel is important in considering the knowledge that that counsel will have related to the file in question. If counsel is retained too late to be able to work effectively on a claimant’s case, then access to counsel has not been meaningful. As Lorne Waldman puts it, "in order to ensure that the person’s right to counsel is meaningful, counsel must be given a reasonable opportunity to prepare the case." In Madoui v. Canada, the Court found a breach of natural justice and set aside a decision when the tribunal refused to adjourn in order to allow newly retained counsel to prepare. That said, this must be balanced with the Federal Court's holding in Aseervatham v. Canada that "A claimant has the right to select counsel for himself.  At the same time, if the counsel he chooses is not able to appear because he is too busy or for any other reason, he cannot expect the tribunal to adjust to the requirements of that counsel."
  • Experience of counsel: The quality of counsel is also important. Simply being able to retain a lawyer who has little or no experience in refugee law is not proper access to counsel in the context of a refugee claim with high stakes for a claimant.
  • Whether the claimant has particular counsel of choice: There is some jurisprudence that would suggest that the right to counsel may also include the right to counsel of choice. In Rosales v. Canada, the Member refused to grant an adjournment of six weeks to a date when the applicant’s counsel of choice would be willing to proceed. The Member stated in his reasons for refusing the adjournment that there were many competent counsel in Winnipeg who could be retained to act on behalf of the applicant. The Court found that, given that the adjournment was only for six weeks, this was not an unreasonable delay, and issued a prohibition prohibiting the Member from proceeding with the hearing until the applicant’s counsel of choice was present.
• Any previous delays and the reasons for them: Where past delays have been caused by factors outside of a claimant's control, such as the illness of their counsel, this should not rightfully be held against the claimant, as the court concluded in N. v. Canada: "Here, the Board considered the timing of the request and the fact that there had been a previous postponement of the hearing. Had it considered the other relevant factors, it would have noted that Ms. M.C.S.N. was to blame for neither adjournment. The first resulted from her counsel’s illness, and the second was due to his unavailability."
• The nature and complexity of the matter to be heard: In some cases claimants will face possible exclusion from refugee protection due to status in a third country, or because of the alleged commission of serious crimes. The application of the exclusion provisions has been described as "often complex and involving a substantial and changing body of law". This may properly point towards allowing a request to reschedule a matter. Similarly, in N. v. Canada the court commented that "hers was a fairly complex case, raising difficult legal issues such as nexus, state protection and internal flight alternative. She could not have been expected to make any meaningful submissions on those issues, especially through an interpreter." As a result, the court concluded that proceeding in the absence of counsel created a risk of injustice."
• Any alternatives to allowing the application: The Division should consider the feasibility of any alternative to allowing an application to change the date or time of a proceeding. For example, the Chairperson Guideline 6: Scheduling and Changing the Date or Time of a Proceeding states that "If a party requests a change of date or time of the proceedings for the purpose of obtaining documentation, the RPD generally proceeds and will determine at the end of the hearing whether or not it is necessary to grant a delay to obtain and provide the documents." If the request is to adjourn the hearing in order to allow the applicant to call a witness, consideration can be had of the rules and timelines for calling witnesses: Canadian Refugee Procedure/RPD Rules 44-48 - Witnesses.
• Whether needless delay would result. As the Federal Court observes, there is a general interest in the expeditious adjudication of refugee claims.
• Whether the applicant is to blame.
• Whether the party has counsel.
• Whether allowing the application would unreasonably delay the proceedings or likely cause an injustice.
• The time the party has had to prepare for the proceeding.

For requests that involve counsel's availability (or lack thereof) see the following section below: Canadian Refugee Procedure/RPD Rule 54 - Changing the Date or Time of a Proceeding#Factors for assessing requests to reschedule a hearing based on the (un)availability of counsel.

RPD Rule 54(5) - Counsel retained or availability of counsel provided after hearing date fixed

Counsel retained or availability of counsel provided after hearing date fixed
(5) If, at the time the officer fixed the hearing date under subrule 3(1), a claimant did not have counsel or was unable to provide the dates when their counsel would be available to attend a hearing, the claimant may make an application to change the date or time of the hearing. Subject to operational limitations, the Division must allow the application if
(a) the claimant retains counsel no later than five working days after the day on which the hearing date was fixed by the officer;
(b) the counsel retained is not available on the date fixed for the hearing;
(c) the application is made in writing;
(d) the application is made without delay and no later than five working days after the day on which the hearing date was fixed by the officer; and
(e) the claimant provides at least three dates and times when counsel is available, which are within the time limits set out in the Regulations for the hearing of the claim.

Subrule 54(5) sets out circumstances where an adjournment is mandatory, does not restrict the Board's ability to otherwise grant adjournments

This rule sets out circumstances where the Board must grant a postponement of the hearing. Where those circumstances do not exist, the Board nonetheless has the discretion to grant an adjournment where the applicant’s personal situation warrants it.

There is no blanket rule that a new lawyer must be ready to go with an existing hearing date when they pick up a file

The Chairperson Guideline 6: Scheduling and Changing the Date or Time of a Proceeding provide guidance on how to consider requests that a hearing be rescheduled. The guidelines state at para. 3.6.2 that the Board does not generally allow applications to change the date of a proceeding where newly retained counsel is not available on the date scheduled for the hearing:

If counsel is retained after a date has already been set for a proceeding, the party is responsible for making sure that counsel is available and ready to proceed on the scheduled date. The IRB does not generally allow applications to change the date or time of a proceeding if a party chooses to retain counsel who is not available on a date that has already been fixed.

Even though it is the case that the Board will not generally allow an application to change the date of a proceeding because of the unavailability of newly retained counsel, there is no blanket rule that a new lawyer must be ready to go with an existing hearing date when they pick up a file. In Guylas v. Canada, the Member commented "if [a new] lawyer picks up a file he has to be ready to go at the hearing. Yours wasn’t. So you have to go ahead [in the absence of counsel]." The court held that this was a misstatement of the law and rules on point. There was a more fulsome discussion of the law on point in Pierre v. Canada:

What is commonly referred to as the right to counsel requires only that the person be afforded a reasonable opportunity to retain, to represent him before the officer or tribunal.  In exercising the choice of counsel, there are certain qualifications which must circumscribe the manner in which this choice is exercised.  Where the person has a right to choose counsel to represent him, a choice must be from amongst those who are ready and able to appear on his behalf within the reasonable time requirements of the officer or tribunal.  Thus, a person cannot select the busiest counsel in the area and insist on being represented by him when that counsel, on account of prior commitments, would not be able to appear before the council without unduly delaying the course of the proceedings. If the person has been made aware of his right to choose counsel, and at the end of a reasonable time, has refused or failed to retain counsel ready and able to represent him, according to the exigencies of the situation, he also has not been denied the right to counsel.

Factors for assessing requests to reschedule a hearing based on the (un)availability of counsel

The Federal Court commented in Tung v. Canada that in exercising its discretion to reschedule a case, the Board must generally take into account all relevant factors. This will include the exceptional circumstances listed in Rule 54(4) (accommodating a vulnerable person or an emergency or other development outside of a party's control where the party has acted diligently) as well as any other relevant factors. Siloch v. Canada provides the following factors for assessing applications to reschedule where the right to counsel is at issue:

• whether the applicant has done everything in their power to be represented by counsel;
• the number of previous adjournments granted, including any peremptory adjournments;
• the duration of the requested adjournment;
• the effect on the immigration system;
• whether needless delay would result; and
• whether the applicant is to blame.

The Siloch v. Canada factors above are still considered to be good law despite the fact that the case pre-dates the changes made to the RPD Rules in 2012 (Tung v. Canada). Where the Board fails to take into account relevant factors cited above and refuses an adjournment request, it will have acted unreasonably. This is the case even where the Board considers a claimant's vulnerability or whether there was an emergency beyond a party's control. As the court notes in Tung v. Canada, the latter are merely examples of exceptional circumstances, not an exhaustive definition of all relevant exceptional circumstances. In that case, the Federal Court concluded that the Board had erred because it "appeared not to consider whether Ms Tung’s personal situation amounted to exceptional circumstances in the broader sense." That said, the above factors need not take on a check-list quality: the Federal Court of Appeal has rejected the argument that the factors in Siloch must be considered whenever a party requests an adjournment, it being a non-exhaustive list of the sorts of factors a judge deciding the case may find useful to consider. The Federal Court in Mohammed v. Canada concluded that this decision is relevant to the refugee context.

The Chairperson Guideline 6 dealing with scheduling and adjournments states that "The fact that counsel wants to take time off, fulfil other professional duties or attend to personal matters that are neither urgent nor unforeseen are not sufficient reasons to allow an application to change the date or time of a proceeding." The Federal Court commented on this as follows in Gallardo v. Canada: "Although this Guideline expresses a generally negative sentiment toward adjournments based on counsel availability, it does not rule out that possibility. Article 3.6.4 also says that personal or professional conflicts of a non-urgent nature are insufficient to justify an adjournment. This suggests that professional conflicts of a more urgent nature need to be taken into account and may support an adjournment." However, when considering such factors, it is relevant to consider the size of the counsel's law firm or practice. For example, when dealing with requests by the Minister to postpone hearings on the basis that no officer is available to attend, the IAD has stated "as the institutional litigant the Minister’s office is expected to marshal the necessary resources to meet the number of courts that are scheduled in any given week, especially as the schedule is set months in advance." Furthermore, the court has held that "While there is a right to counsel of choice, one must choose a counsel who will appear within the time periods fixed by the tribunal."

RPD Rule 54(6)-(8) - Medical Reasons

Application for medical reasons
(6) If a claimant or protected person makes the application for medical reasons, other than those related to their counsel, they must provide, together with the application, a legible, recently dated medical certificate signed by a qualified medical practitioner whose name and address are printed or stamped on the certificate. A claimant or protected person who has provided a copy of the certificate to the Division must provide the original document to the Division without delay.

Content of certificate
(7) The medical certificate must set out
(a) the particulars of the medical condition, without specifying the diagnosis, that prevent the claimant or protected person from participating in the proceeding on the date fixed for the proceeding; and
(b) the date on which the claimant or protected person is expected to be able to participate in the proceeding.

Failure to provide medical certificate
(8) If a claimant or protected person fails to provide a medical certificate in accordance with subrules (6) and (7), they must include in their application
(a) particulars of any efforts they made to obtain the required medical certificate, supported by corroborating evidence;
(b) particulars of the medical reasons for the application, supported by corroborating evidence; and
(c) an explanation of how the medical condition prevents them from participating in the proceeding on the date fixed for the proceeding.

Commentary

See the discussion of the very similar rules regarding medical certificates in the context of the RPD Rules on Abandonment: Canadian Refugee Procedure/Abandonment#Rules 65(5)-(7) - Medical reasons.

Requests to change the date or time of a hearing based on medical reasons relating to counsel

Rule 54(6) provides that if a claimant or protected person makes an application for medical reasons, other than those related to their counsel, they must provide the listed information. As this language indicates, requests to change the date or time of a proceeding based on medical issues related to counsel shall be considered by the Division, but they need not involve supplying all of the information specified above. Indeed, there is a duty on the Board to reasonably accommodate a counsel who has scheduling restrictions due to medical issues, per section 15 of the Charter and section 5 of the Canadian Human Rights Act. In Biro v. Canada (Minister of Immigration and Citizenship), 2006 FC 712, the Federal Court overturned the RPD’s decision declaring a claim abandoned in a case where counsel could not appear due to medical reasons.

RPD Rule 54(9) - Subsequent applications

Subsequent application
(9) If the party made a previous application 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.

RPD Rule 54(10) - Duty to appear

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

RPD Rule 54(11) - Scheduling the new date

New date
(11) If an application for a change to the date or time of a proceeding is allowed, the new date fixed by the Division must be no later than 10 working days after the date originally fixed for the proceeding or as soon as possible after that date.

Commentary

The courts have held that fundamental justice does not provide for a specific amount of time within which to prepare for a hearing. The phrase "as soon as possible after that date" has a specific meaning in the refugee law context considering the history of changes to the IRPA. Section 48(2) of the Act mandates that "If a removal order is enforceable, ... the order must be enforced as soon as possible." The phrase “as soon as possible” used in that portion of the Act replaced the previous version of the statute in which the phrase read “as soon as is reasonably practicable.” As such, where the phrase "as soon as possible" is used in this regime, as it is here, it connotes a different, and arguably stronger, obligation than that connoted by the phrase "reasonably practicable".