Canadian Refugee Procedure/Documents

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Contents

Rule 31 - How to provide documents[edit]

The text of the relevant rules reads:

Documents

Form and Language of Documents

Documents prepared by party
31 (1) A document prepared for use by a party in a proceeding must be typewritten, in a type not smaller than 12 point, on one or both sides of 216 mm by 279 mm (8 1⁄2 inches x 11 inches) paper.

Photocopies
(2) Any photocopy provided by a party must be a clear copy of the document photocopied and be on one or both sides of 216 mm by 279 mm (8 1⁄2 inches x 11 inches) paper.

List of documents
(3) If more than one document is provided, the party must provide a list identifying each of the documents.

Consecutively numbered pages
(4) A party must consecutively number each page of all the documents provided as if they were one document.

Commentary[edit]

For the purposes of Rule 31(3), "documents" need not be paper ones[edit]

The wording of this rule was drafted against the background of the wording of the prior rule 27 under the 2002 Refugee Protection Division Rules, which was quite similarly worded (though not identical).[1] The caselaw applying to the previous rule would therefore appear to continue to be applicable to the updated one, except where an amendment to the rules evinces a desire to depart from a previous interpretation or practice. In Cortes v. Canada, when interpreting the previous version of this rule, the court endorsed the following broad conception of what a document is within the meaning of the RPD Rules: "The Commentaries to the Refugee Protection Division Rules provide that “document” includes “any correspondence, memorandum, book, plan, map, drawing, diagram, picture or graphic work, photograph, film, microform, sound recording, videotape, machine‑readable record, and any other documentary material, regardless of physical form or characteristics, and any copy of those documents”".[2] This interpretation continues to be persuasive, notwithstanding that the Commentaries to the Refugee Protection Division Rules are no longer made available by the Board.

Rule 32 - Language of Documents[edit]

Language of documents — claimant or protected person
32 (1) All documents used by a claimant or protected person in a proceeding must be in English or French or, if in another language, be provided together with an English or French translation and a declaration signed by the translator.

Language of Minister’s documents
(2) All documents used by the Minister in a proceeding must be in the language of the proceeding or be provided together with a translation in the language of the proceeding and a declaration signed by the translator.

Translator’s declaration
(3) A translator’s declaration must include translator’s name, the language and dialect, if any, translated and a statement that the translation is accurate.

Commentary[edit]

The following commentary applies to Rules 32(1)-(3) collectively. More specific commentaries that only apply to one of the above paragraphs follows.

The Board may choose not to accept evidence not translated in accordance with the rules, or it may assign such evidence low weight[edit]

Declining to accept untranslated evidence[edit]

The proper procedure to follow where a claimant attempts to admit evidence that is untranslated is ordinarily that followed by RAD Member Normand Leduc when he wrote as follows: "Exhibit P-3 is not translated into English or French and, consequently, I cannot accept it as evidence."[3] This is so as the language of this rule is described as "mandatory", including through its use of the word "must",[4] and that countervailing considerations such as cost[5] and time constraints[6] are not generally valid reasons for non-compliance with the rule that documents be translated.

Accepting untranslated evidence into evidence, but weighing it based on the fact that it is untranslated[edit]

The Board also has the power to admit such evidence into the record, while assigning it little or no weight, through its power to vary the rules per Rule 70 of the RPD Rules. For example, in interpreting its analogous rule, the Immigration Appeal Division commented:

The appellant provided approximately 72 pages of documents as evidence. The majority of the documents were in the German language. Minister’s counsel objected to admission of those documents on the basis that they did not comply with Immigration Appeal Division Rule 29(1). The German language documents were not translated into either official language. The appellant explained that the purpose of the documents was to show the extent of his dental treatment. The documents were allowed into evidence but the appellant was advised little or no weight could be attached to them since they were not translated into one of Canada’s official languages.[7]

The logic and practicality of admitting such untranslated documents, was illustrated by the Immigration Appeal Division, when interpreting its analogous rule, as follows:

The appellant provided copies of chat messages for a select period. For the most part, those messages are in a foreign language. Counsel for the Minister of Citizenship and Immigration submitted that the messages should not have been admitted as evidence because they do not conform to IAD Rule 29(1). The age of smartphones, internet communications and social media creates a dilemma. If a couple is regularly communicating by text, chat messages, Facebook or similar instant messaging, disclosure of all their messages would bog down hearings with mountains of paper. The cost of translation would be prohibitive. On the other hand, providing the messages without translation limits their probative value. Providing only a sample may lead to the inference that the remaining messages contain evidence adverse to the appellant’s case. There is no easy solution. The appellant has attempted to overcome the problem by providing a statutory declaration explaining the evidence. That is of some assistance. I give the evidence some weight, but the weight I give is reduced by the fact that the messages are in a foreign language.[8]

This rule applies to all documents submitted, not only to documentary evidence[edit]

Rule 32 covers all "documents", whether or not those documents are evidentiary ones, or other types of documents such as written submissions. This is because the use of the word "document" in the rule can be contrasted with Rule 43 which concerns the use of a "document as evidence". In this way, Rule 43 has been held not to apply to submissions made after a hearing. This is because, as stated in Yared Belay v. Canada, this rule sets out a procedure for filing evidence after a hearing, not submissions.[9] In contrast, Rule 32 applies to all documents, whether or not those documents are submissions or documents being submitted for evidentiary purposes. As such, a party is unable to provide letters, correspondence, submissions, or other documents that do not meet these rules regarding language requirements.

This translation requirement applies to video and audio evidence submitted to the Board[edit]

Claimants regularly submit audio and video evidence to the Board. It must be translated into English or French. The Federal Court confirmed this in Cortes v. Canada when interpreting the previous version of this rule:

Rule 28 provides that “[a]ll documents used at a proceeding must be in English or French or, if in another language, be provided with an English or French translation and a translator’s declaration”. Moreover, the Commentaries to the Refugee Protection Division Rules provide that “document” includes “any correspondence, memorandum, book, plan, map, drawing, diagram, picture or graphic work, photograph, film, microform, sound recording, videotape, machine‑readable record, and any other documentary material, regardless of physical form or characteristics, and any copy of those documents”. Here, the DVD is a “document” that was not translated as required by the Rules. The panel was therefore entitled to attach no probative value to it.[2]

The Refugee Protection Division has confirmed that the same reasoning applies to audiovisual and other evidence submitted under the current version of the RPD Rules.[10]

The Board may decline to admit translations of only a portion of a document[edit]

Member Edward Bosveld of the Refugee Appeal Division concluded that generally, a translation of a document should be complete, not only a selective translation of isolated words in a document on which a party wishes to rely:

Here, the Minister has not provided a translation of the Albanian-language wording on the Facebook pages, and yet seeks to rely upon that wording to establish that the Respondent’s father is employed as a XXXX XXXX XXXX, which the Minister argues is not consistent with self-confinement at home. The Respondent disputes this contention, noting that the Minister has only translated selective words, and he disagrees that the words relate to his father’s employment. The Minister has not complied with the requirement to provide a signed translator’s declaration along with the translation of the Albanian words on the Facebook posts. Further, even if such a declaration had been provided, the RAD would still have some difficulty because only a partial translation has been provided. The translation provided does not comply with the Rules, is not complete, and the RAD cannot determine whether it is accurate. The RAD therefore declines to admit the Google translations into evidence.[11]

Rule 32(1) - Language of claimant or protected person's documents[edit]

Language of documents — claimant or protected person
32 (1) All documents used by a claimant or protected person in a proceeding must be in English or French or, if in another language, be provided together with an English or French translation and a declaration signed by the translator.

Commentary[edit]

Claimants need not provide documents in the language of the proceeding, only in English or French[edit]

Claimants elect a language for their proceeding, either English or French. That said, per Rule 32(1), they are not limited to submitting documents in that language. Unlike the Rule for the Minister at 32(2), claimants are solely required to provide their documents in English or French (or, for documents in another language, with a translation into either English or French), regardless of what the language of the proceeding is. RAD Member Douglas Fortney commented on this issue as follows:

In this case where the RPD member could not understand a document provided in French, the correct procedure would have been to have accepted the document into evidence and if necessary obtain an English language translation. Alternatively, it could have been considered to have obtained the services of a French – English interpreter who could have assisted in understanding the contents of the document at the RPD hearing.[12]

This is reinforced by the IRB Policy Statement on Official Languages and the Principle of the Substantive Equality of English and French, which states that "All persons in the hearing room are free to speak the official language of their choice, including counsel for the subject of the proceeding. At the request of any party to the proceeding, the IRB will make arrangements to provide interpretation from one official language to the other, taking into consideration third language interpretation may also be required for the case."[13] This has legislative support in section 14 of the Official Languages Act, which provides:

Official languages of federal courts 14 English and French are the official languages of the federal courts, and either of those languages may be used by any person in, or in any pleading in or process issuing from, any federal court.[14]

The Board is considered to be a "federal court" based on the way that term is defined in the Official Languages Act and is thus bound by this provision: Canadian Refugee Procedure/Decisions#In what language or languages must the reasons for decisions be made available where they are publicly released?

Procedural fairness considerations where a claimant's untranslated documents are not accepted[edit]

Where a claimant's untranslated documents are not accepted, panels have attempted to accommodate persons, particularly unrepresented claimants, in a number of ways, including by:

  • allowing the party to testify to the matters discussed in the documents as an alternative way of adducing the evidence in question[15]
  • allowing the party to submit proper translations of the documents in question post-hearing (though the court has held that the Board need not do so as a matter of procedural fairness, even where a claimant is unrepresented, though this conclusion will likely depend on the probative value of the document in question)[16]
  • being aware of the public instructions that claimants are widely given about what to do where they cannot afford to translate all of their documents. Instructions to claimants in public documents such as the guidebook Refugee Hearing Preparation: A Guide for Refugee Claimants from refugeelcaim.ca are that "Translation can be very expensive. If you can’t afford to translate everything, choose the most important documents. Tell the IRB-RPD in writing that you have other documents that you could not afford to translate. Take them to the hearing and explain to the Presiding Member what the documents show."[17]

The Board is not obliged to pay for the translation of documents where a claimant cannot afford to do so[edit]

The Refugee Appeal Division has held that "the responsibility to provide translations for documents in a foreign language rests with the party using the documents, in this case, the claimant." They went on to note that "the fact that the Board can and sometimes does translate documents that the Board intends to use as evidence is not relevant to the decision of the RPD. The RPD Rules clearly require the “user” (claimant in this case) to provide translations of foreign language documents. The claimant (the Appellant) failed to do so and therefore failed to comply with the rules."[18]

Rule 32(2) - Language of Minister's documents[edit]

Language of Minister’s documents
(2) All documents used by the Minister in a proceeding must be in the language of the proceeding or be provided together with a translation in the language of the proceeding and a declaration signed by the translator.

Commentary[edit]

The language the Minister must use in oral and written pleadings[edit]

The above rule applies not just to documentary evidence, but to all "documents" used in a proceeding: Canadian Refugee Procedure/Documents#This rule applies to all documents submitted, not only to documentary evidence . A question may arise about the proper scope of the terms "document" and "proceeding" are in the above rule. For example, if a Minister provides a notice of intervention, is it a "document" being used in a "proceeding"? An argument can be advanced that it is not since "proceeding" is defined term in the Rules as including "a conference, an application or a hearing". At the time that it is being provided, the document is arguably not being used in any of those, just in anticipation of one or more of them. Such semantic quibbling is best avoided. As the Board states in its Policy Statement on Official Languages and the Principle of the Substantive Equality of English and French, "language rights must generally be given a broad and liberal interpretation". The better view of this question is that the Minister is under a legal obligation to provide all documents, including pleadings and other procedural documents, in the language of the proceeding. The Official Languages Act provides that where a federal institution is a party to civil proceedings is shall use the language chosen by the other parties in any oral or written pleadings, except in narrow exceptional circumstances:

Language of civil proceedings where Her Majesty is a party

18 Where Her Majesty in right of Canada or a federal institution is a party to civil proceedings before a federal court,

(a) Her Majesty or the institution concerned shall use, in any oral or written pleadings in the proceedings, the official language chosen by the other parties unless it is established by Her Majesty or the institution that reasonable notice of the language chosen has not been given; and

(b) if the other parties fail to choose or agree on the official language to be used in those pleadings, Her Majesty or the institution concerned shall use such official language as is reasonable, having regard to the circumstances.[19]

While there does not appear to be judicial consideration on point, it is arguable that this provision applies to delegates of the Minister of IRCC or PSEP where they intervene in matters before the Board. Such proceedings are "before a federal court", which is defined in s. 3(2) of the Official Languages Act as "any court, tribunal or other body that carries out adjudicative functions and is established by or pursuant to an Act of Parliament." The Federal Court of Appeal has concluded that the Board meets this definition.[20] Furthermore, the participation of the Minister's delegates in Board proceedings would appear to constitute a circumstances in which a "federal institution" has become party to proceedings. A "federal institution" is defined broadly in the Official Languages Act: it not only includes the Department of Citizenship and Immigration and the Department of Public Safety and Emergency Preparedness (based on the definitions of "federal institution" and "department" in s. 3 of the Act), but it also includes "any other body that is specified by an Act of Parliament to be an agent of Her Majesty in right of Canada or to be subject to the direction of the Governor in Council or a minister of the Crown", which would presumably include a Minister's delegate under the IRPA.

If the claimant switches languages from French to English, or vice versa, the Minister must provide translations of their documents they intend to use[edit]

Practice under the previous version of the RPD rules was that such documents need not be translated[edit]

Under the previous 2002 version of the rules, the wording of the predecessor rule to Rule 32(2) was interpreted as not requiring the Minister to provide translations of documents where the claimant subsequently switched the language of proceedings. For example, if the claimant elected to proceed in French and the Minister gave the claimant a document in French, and the claimant then subsequently decided that they instead preferred to proceed in English, the Minister was not obliged to provide a new translation of the document into English, but could instead rely on the previously disclosed document. The key question was whether the document was provided to the claimant in the language of proceedings at the time that it was sent.

This question was dealt with by the Federal Court in Blanco v. Canada, a case that concerned the previous version of the rules at the Immigration Division, which tracked the wording in the RPD Rule. In that case, the person concerned commenced his proceedings in English. The claimant then secured new, French-speaking, counsel. The Board then approved the claimant's application to change the language of the proceedings to French. At the same time, the panel refused to provide French translations of the documents that the Minister had previously sent to the applicant's former counsel in English. The claimant argued at the hearing that the panel could not legally enter into evidence documents that were in English and had not been translated into French prior to the hearing. The Federal Court rejected this argument on the basis that "It is clear that when the documents in question were provided by the respondents, the language of the proceedings was English, precluding the need for a French translation."[21] This interpretation appears to turn on the then-extant Immigration Division rule which stipulated that "If the Minister provides a document that is not in the language of the proceedings, the Minister must provide a translation and a translator’s declaration." On the basis that the rule in question provided that the trigger for translation is the language of proceedings at the time that the document is provided, the court concluded that the documents could properly be entered as evidence in the hearing.

Changes to this provision in the 2012 RPD Rules now require that the document be in the language of proceedings at the time of its use[edit]

The Board's practice that was highlighted in the Blanco decision (above) was stridently criticized by members of the House of Commons Official Languages Committee.[22] The Official Languages Commissioner subsequently requested that the Board make changes to the RPD Rules regarding the rules about the language of RPD proceedings. One of the goals for the new RPD Rules, as identified by the Board, was to "address [these] recommendations of the Office of the Commissioner of Official Languages (OCOL)".[23] The wording of the new (and current) Rule 32(2) requires that "all documents used by the Minister in a proceeding must be in the language of the proceeding or be provided together with a translation in the language of the proceeding and a declaration signed by the translator". This is a departure from the previous wording of this Rule under the 2002 version of these rules, which read: "If the Minister provides a document that is not in the language of the proceedings, the Minister must provide a translation in that language and a translator’s declaration."[24] The fact that the rule focuses on the use of the documents appears to indicate that under the new rules, the circumstances in Blanco v. Canada would not recur because the Minister would be obliged to provide translations of any documents that they had previously provided should they want to continue to rely on them.

Rule 32(3) - Language of documents - Requirement for a translator's declaration[edit]

Translator’s declaration
(3) A translator’s declaration must include translator’s name, the language and dialect, if any, translated and a statement that the translation is accurate.

Commentary[edit]

Where the document does not contain a translator's declaration in the appropriate form, it should generally not be admitted[edit]

Rules 32(1), 32(2), and 32(3), read conjointly, require that a copy of the original document in the original language be submitted as well as a translation that is accompanied by a translator's declaration. The translator's declaration should be in the following form: "A translator’s declaration must include translator’s name, the language and dialect, if any, translated and a statement that the translation is accurate." Where this requirement for a translator's declaration has not been complied with, the proper process is generally that the document should not be admitted. For example, the RAD has commented as follows:

Although there is an English translation of these documents, there is no [translator's declaration] attached to them, as is required.... The RAD, therefore, cannot ascertain that these documents have been properly translated from Chinese into English. The RAD therefore cannot accept these documents[.][25]

Parties sometimes attempt to adduce evidence that has been translated through automated systems such as Google Translate. It should generally not be admitted into evidence on the basis that no Rule 32(3) translator's declaration has been provided for such evidence. On the basis that "The Board cannot determine whether it is accurate", the Refugee Appeal Division has declined to admit such Google translations into evidence, including when provided by the Minister.[26] The Refugee Protection Division specifically issued a practice notice on this point entilted Refugee Protection Division Practice Notice: Compliance with Refugee Protection Division Rules which comments on Google translations as follows:

The RPD frequently receives documents that have not been translated, or have been translated but are not accompanied by a translator’s declaration. Sometimes these documents have been translated by a web-based tool, such as Google Translate. Such translations do not comply with RPD Rule 32, cause delays to the proceedings and may not be accepted by the presiding member.[27]

The translator need not supply an affidavit, be accredited, be fluent in both languages, or be completely independent[edit]

Provided that a translator's declaration has been provided that meets the requirements of Rule 32(3) ("A translator’s declaration must include translator’s name, the language and dialect, if any, translated and a statement that the translation is accurate"), it need not comply with other requirements that are not found in the rules:

  • Statement from translator need not be an affidavit: For example, it need not be in the form of an affidavit; the Immigration Appeal Division reached this conclusion when interpreting its similar rule: "The panel does not share the respondent’s concern with the Certificate of Translation that accompanied the disclosure.  While not in the form of an affidavit, the Rule does not require one".[28]
  • Translator need not be "accredited": There are many bodies that accredit translators and interpreters, from the Board itself to professional organizations like the Society of Translators and Interpreters of British Columbia.[29] While using an accredited translator may be a good idea, it is not a requirement of the rules. The Immigration Appeal Division reached this conclusion when interpreting its similar rule: "The Minister’s counsel submitted that the translations ... do not constitute credible evidence because they were not done by accredited translators.... The panel is of the opinion that the documents submitted by the appellant showing the exchanges between the parties ... can be taken into account by the panel, even though they were not written by accredited translators".[30]
  • Translator need not be completely independent from the claimant: The translator is to have a certain degree of independence from the claimant - the claimant themselves cannot act as the translator, for instance - but the degree of independence required is not high. This was emphasized by the Immigration Appeal Division in interpreting its similar rule, when it rejected documents in one case on the basis of its concern that, inter alia, the documents were "not fully translated by an independent translator".[31] This aspect of independence is also emphasized by public explanations of the process, including Kinbrace Community Society's Refugee Hearing Preparation: A Guide for Refugee Claimants which notes that it is best that the translator not be a relative: "Certified translators are best, but not required. If you cannot pay for a professional translator, you can have someone else you trust (preferably not a relative) translate your documents for you. This person must sign a translator’s declaration."[17] A person working in-house at the law firm the claimant has selected may be considered acceptable to perform this task.[30]
  • The translator need not be fluent in both languages: The University of Ottawa Refugee Assistance Project has a Hearing Preparation Kit which discusses this. They include sample translator's declarations, both where the translator is fully fluent in both languages, and one for where the translator is not. They indicate that an acceptable declaration to be used where the translator is not fully fluent in both languages is as follows: "I, ____(name_______, of the City of ____(location)_____, hereby certify that I have translated this Marriage Certificate from ____(original language)___ to English, and that I am partially competent to render such translation, being partially fluent in the ____(original language)___ and English languages. A fully competent translator was not available."[32]

Rule 33 - Disclosure and use of documents by the Division[edit]

Disclosure and Use of Documents

Disclosure of documents by Division
33 (1) Subject to subrule (2), if the Division wants to use a document in a hearing, the Division must provide a copy of the document to each party.

Disclosure of country documentation by Division
(2) The Division may disclose country documentation by providing to the parties a list of those documents or providing information as to where a list of those documents can be found on the Board’s website.

Rule 34 - Process and timeline for disclosure of documents by a party[edit]

Disclosure of documents by party
34 (1) If a party wants to use a document in a hearing, the party must provide a copy of the document to the other party, if any, and to the Division.

Proof that document was provided
(2) The copy of the document provided to the Division must be accompanied by a written statement indicating how and when a copy of that document was provided to the other party, if any.

Time limit
(3) Documents provided under this rule must be received by their recipients no later than
(a) 10 days before the date fixed for the hearing; or
(b) five days before the date fixed for the hearing if the document is provided to respond to another document provided by a party or the Division.

Commentary[edit]

The Board must consider its discretion to provide relief where a claimant submits a document later than the time limit in Rule 34(3)[edit]

The time limit in Rule 34(3) for providing documents must be read in conjunction with section 170 of the IRPA, and specifically the following subsections of that provision:

Subsections 170 (e), (g) and (h) of the IRPA however indicate that in any proceeding before the RPD it:
(e)  must give the person . . . a reasonable opportunity to present evidence . . .;
(g)  is not bound by any legal or technical rules of evidence;
(h)  may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances.

In Trboljevac v. Canada, the court commented that "While the Panel Member was aware of the ten-day time period in Rule 34(3) for disclosing documents, the failure of the Member to acknowledge or apparently be aware of the IRPA provisions allowing them to nonetheless accept the documents had the effect of preventing the Applicant from substantiating his claim. ... the Panel Member should have addressed why they declined to exercise the discretion provided to them in section 170 of the IRPA. Failure to exercise that discretion was a breach of natural justice in this matter."[33] The Board's discretion to admit late-filed documents is guided by Rule 36, below.

Rule 35 - Documents relevant and not duplicate[edit]

Documents relevant and not duplicate

35 Each document provided by a party for use at a proceeding must
(a) be relevant to the particular proceeding; and
(b) not duplicate other documents provided by a party or by the Division.

Commentary[edit]

Practice notice on voluminous country conditions evidence[edit]

The Board’s Notice to parties and counsel appearing before the Refugee Protection Division – voluminous country conditions evidence specifies procedures regarding voluminous disclosure of country conditions evidence filed at the Refugee Protection Division. As per the practice notice, parties must make a formal application to submit country conditions evidence that exceeds 100 pages per country of reference.[34] Disclosure of country conditions evidence over the specified page limit must be accompanied by an application made in accordance with RPD Rule 50.

How does one know whether documents are country conditions evidence or not?[edit]

As the practice notice states, evidence presented before the RPD generally falls into two broad categories: documents personal to the parties (e.g. identity documents, police reports, etc.) and evidence regarding country conditions (e.g. human rights reports, research on the situation in the country, etc.). This Practice Notice applies only to country conditions evidence. Documents which speak to the claimant's personal risk and are specific to their claim, for example those that are by or about the claimant themselves, will be considered personal. In contrast, country conditions documents are evidence relating to human rights conditions in a claimant's country. The question in each case is whether the primary purpose of a particular document is to substantiate the claimant's personal profile or to speak to human rights or other facts and conditions regarding a claimant's country. The guidebook Refugee Hearing Preparation: A Guide for Refugee Claimants from refugeelcaim.ca provides examples of each type of document. With regards to personal documents, they list:

  • Are there photographs, letters, videos, emails, or other documents that show the problems you had? Get them!
  • Did you go to the police or another government agency for help? Get a copy of the police report or other proof of your visit.
  • Did you get medical help? Get your hospital or doctor’s records.
  • Are there news articles about people who are connected to your case? Get them!
  • Are there people who witnessed what happened to you? Ask them to write what happened and send it to you. If possible, ask this person to swear (declare) their statement is true in front of a lawyer or notary.
  • Are there people who have experienced problems that are similar to yours? Ask them to describe their experiences in writing. If possible, ask this person to swear their statement is true in front of a lawyer or notary.
  • Is your claim based on your religious identity or membership in a political party or other group? Get documents that show your membership.
  • Has your mental health suffered because of what happened to you? Get a report from a doctor or psychologist in Canada which documents your health problems.
  • You will also need identity documents to prove your citizenship.[17]

With regards to country conditions documents, they list:

  • This type of evidence includes reports from well-respected sources that document human rights abuses, political events, and other news that relate to your claim.
  • Recent reports from human rights organizations (e.g. Amnesty International, Human Rights Watch), United Nations reports, U.S. State Department Country Reports, news articles, or videos showing human rights abuses in your country.
  • Articles and reports from newspapers and human rights organizations in your country.

Similarly, documents about an organization that the claimant may have been involved with (even in Canada) will fit into this category of evidence that relates to human rights conditions in a claimant's country, so long as they do not mention the claimant by name or otherwise depict or refer to the claimant. Thus, for example, where the Minister seeks to intervene to argue that a claimant is excluded pursuant to Article 1F(a) of the Convention, if the Minister wishes to provide more than 100 pages to demonstrate that an organization in question committed crimes during a specific historical period, pursuant to this practice notice, they must bring an application for permission to file voluminous disclosure.

What is the Board's jurisdiction to limit voluminous country conditions disclosure?[edit]

As is clear from Rule 35, the only conditions imposed on which documents may be admitted are that they must be relevant to the proceeding and not duplicate any other documents provided by the claimant or the Division. The RPD Rules themselves contain no restriction on the volume of documents that may be disclosed, and they make no distinctions between different types of documents. The authority cited in the practice notice is that the Chairperson of the IRB has the authority to take any action that may be necessary to ensure that members of the Board are able to carry out their duties efficiently and without undue delay as per paragraph 159(1)(g) of the Act. In addition, Rule 69 of the RPD Rules specifies that in the absence of a provision in the Rules dealing with a matter raised during the proceedings, the Division may do whatever is necessary to deal with the matter. The sufficiency of this legislative provision and Rule as authority for what appears to be an amendment to the Rules via practice notice (that was not authorized by the Governor in Council, as required), does not appear to have received judicial consideration. See Canadian Refugee Procedure/About for details about how the RPD rules were authorized by the Governor General in Council. However, the Federal Court of Appeal’s reasoning in Thamotharem v. Canada would appear to provide some support for the Board’s action.[35]

Rule 36 - Use of undisclosed documents[edit]

Use of undisclosed documents
36 A party who does not provide a document in accordance with rule 34 must not use the document at the hearing unless allowed to do so by the Division. In deciding whether to allow its use, the Division must consider any relevant factors, including
(a) the document’s relevance and probative value;
(b) any new evidence the document brings to the hearing; and
(c) whether the party, with reasonable effort, could have provided the document as required by rule 34.

Commentary[edit]

Rule concerns use of undisclosed documents at a hearing, as opposed to other types of proceedings[edit]

Rule 36 provides that a party who does not provide a document in accordance with Rule 34 (which specifies the process and timeline for disclosure of documents by a party) must not use the document at the hearing unless allowed to do so by the Division as per the process specified above. In interpreting this rule, the definitions section in Rule 1 provides a definition of a "proceeding" which is apposite. It defines a proceeding as including "a conference, an application or a hearing". As such, the fact that such documents cannot be used at a "hearing" appears to imply that they may be used in other types of proceedings, subject to other relevant rules. One such rule is Rule 43 concerning additional documents provided after a hearing. If the hearing has occurred, then any documents provided afterwards must meet the requirements of that rule. The fact that this rule does not limit a party's ability to use documents in, say, a pre-hearing application or conference stems from the wording of Rule 34, which establishes the deadline for providing such documents as being "10 days before the date fixed for the hearing". Instead, if a late-filed document being relied upon in a pre-hearing conference or application were to cause prejudice to another party, then general principles of procedural fairness would guide the Board's actions.

Past consideration of the Rule 36 factors[edit]

Past decisions of the Board have considered the above factors thusly:

  • (a) the document’s relevance and probative value
    • Is the source of the document reliable? For country conditions evidence, probative value can be assessed in part by considering the source of the document. For example, in Hasan v. Canada the Board refused to admit a series of documents concerning country conditions relevant to the claim: "Within the Disclosure Package are a number of reports from various organizations attesting to the ill-treatment of Palestinian males, the severe measures taken against Palestinians, and the unlawful killings and other abuses directed against Palestinians by Israeli forces." The court held that it could be considered that "These reports come from such traditionally accepted (for purposes of evidence) sources as Amnesty International. In addition, several reports emanated from Israeli sources such as the Israeli Information Centre for Human Rights in the Occupied Territories."[36]
  • (b) any new evidence the document brings to the proceedings
  • (c) whether the party, with reasonable effort, could have provided the document as required by rule 34
    • Self-represented claimants: The Board's Chairperson Guidelines 7 provide that "Generally speaking, the RPD will make allowances for self-represented claimants who are unfamiliar with the RPD's processes and rules."[37]

Furthermore, the Board is to consider any other relevant factors, which have included:

  • Would there have been offsetting prejudice to the other party had the evidence been admitted? The court considered this factor in Hasan v. Canada when it concluded that the Board was wrong to refuse late evidence in a case where the Minister was not participating.[38]

Rule 37 - Rules apply to any document[edit]

Providing a Document

General provision
37 Rules 38 to 41 apply to any document, including a notice or request in writing.

Rule 38 - How to provide documents to the Division, the Minister, and any other person[edit]

Providing documents to Division
38 (1) A document to be provided to the Division must be provided to the registry office specified by the Division.

Providing documents to Minister
(2) A document to be provided to the Minister must be provided to the Minister’s counsel.

Providing documents to person other than Minister
(3) A document to be provided to a person other than the Minister must be provided to the person’s counsel if the person has counsel of record. If the person does not have counsel of record, the document must be provided to the person.

Rule 39 - Ways that a document may be provided[edit]

How to provide document
39 Unless these Rules provide otherwise, a document may be provided in any of the following ways:
(a) by hand;
(b) by regular mail or registered mail;
(c) by courier;
(d) by fax if the recipient has a fax number and the document is no more than 20 pages long, unless the recipient consents to receiving more than 20 pages; and
(e) by email or other electronic means if the Division allows.

Rule 40 - Application if unable to provide document[edit]

Application if unable to provide document
40 (1) If a party is unable to provide a document in a way required by rule 39, the party may make an application to the Division to be allowed to provide the document in another way or to be excused from providing the document.

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

Allowing application
(3) The Division must not allow the application unless the party has made reasonable efforts to provide the document to the person to whom the document must be provided.

Rule 41 - When documents are considered received[edit]

When document received by Division
41 (1) A document provided to the Division is considered to be received by the Division on the day on which the document is date-stamped by the Division.

When document received by recipient other than Division
(2) A document provided by regular mail other than to the Division is considered to be received seven days after the day on which it was mailed. If the seventh day is not a working day, the document is considered to be received on the next working day.

Extension of time limit — next working day
(3) When the time limit for providing a document ends on a day that is not a working day, the time limit is extended to the next working day.

Rule 42 - Original documents[edit]

Original Documents

Original documents
42 (1) A party who has provided a copy of a document to the Division must provide the original document to the Division
(a) without delay, on the written request of the Division; or
(b) if the Division does not make a request, no later than at the beginning of the proceeding at which the document will be used.

Documents referred to in paragraph 3(5)(e) or (g)
(2) On the written request of the Division, the Minister must without delay provide to the Division the original of any document referred to in paragraph 3(5)(e) or (g) that is in the possession of an officer.

Commentary[edit]

Rule 43 - Additional documents provided after a hearing[edit]

Additional Documents

Documents after hearing
43 (1) A party who wants to provide a document as evidence after a hearing but before a decision takes effect must make an application to the Division.

Application
(2) The party must attach a copy of the document to the application that must be made in accordance with rule 50, but the party is not required to give evidence in an affidavit or statutory declaration.

Factors
(3) In deciding the application, the Division must consider any relevant factors, including
(a) the document’s relevance and probative value;
(b) any new evidence the document brings to the proceedings; and
(c) whether the party, with reasonable effort, could have provided the document as required by rule 34.

Commentary[edit]

Rule applies to evidence, not submissions, caselaw, or other tribunal decisions[edit]

Rule 43 does not apply does not apply to submissions made after a hearing. This is because, as stated in Yared Belay v. Canada, this rule sets out a procedure for filing evidence after a hearing, not submissions.[9] Furthermore, a party cannot make an application to submit another decision of the Refugee Protection Division, or indeed some other tribunal, or a piece of caselaw pursuant to this rule. As the court commented in Petrovic v. Canada:

I do not find that a copy of a tribunal decision constitutes “evidence” under subsection 43(1) of the Rules for the following reasons. First, the RPD is not required to analyze each piece of case law, as it would material evidence. Second, with the presentation of new evidence, the opposing party is generally given the opportunity to make submissions on the admissibility of said evidence, including cross‑examination. It is difficult to imagine how anyone could oppose the admissibility of a piece of case law (decision). Lastly, if Parliament wanted previous RPD decisions to constitute evidence under section 43 of the Rules, I believe it would have explicitly indicated so.[39]

The relevant rule for extending the time to supply non-evidentiary documents is Rule 70 (which see).

The Division has no substantive duty to accept post-hearing evidence or submissions, but it must consider the newly submitted evidence expressly[edit]

As held in Aguilera v Canada, the Board "has no duty to accept post-hearing evidence or to allow submissions thereon".[40] It does, however, have a duty to "acknowledge the post-hearing evidence submitted by the Applicants and to explain why it should or should not be considered".[41] In short, "the Board ha[s] a duty to consider the newly submitted evidence expressly".[42] This duty extends until such time as the decision is rendered.[43] Where a panel fails to acknowledge and review a claimant's post-hearing evidentiary submissions, it will have violated the principles of natural justice and procedural fairness in the adjudication of the claim. However, this obligation does not entitle a claimant to any particular result other than a fair process in which the relevant rules, such as Rule 43, are considered and the evidence is then either accepted or rejected.

New evidence submitted post-hearing should be assessed pursuant to Rule 43 even where the party does not explicitly refer to the rule[edit]

In Shuaib, the Court addressed the issue of whether the RPD could reject post-hearing documents on the basis that no formal application for their admission was made in accordance with Rule 43. The Court found that providing the documents, accompanied by an explanation as to why they should be considered, met the requirements of the Rules.[44] The Court determined that the RPD made a reviewable error in ignoring the post-hearing evidence. Similarly, the RAD has held that the RPD erred in not considering documents where it was "implicit in the correspondence to the RPD that an application was being made to have further evidence considered post-hearing." Member M. Pettinella of the RAD commented on this obligation as follows in one case:

The RAD notes that the Minister’s correspondence was received by the Board after the Appellant’s hearing and before a decision was rendered by the RPD. It is implicit in the Minister’s correspondence to the RPD that an application was being made to have further evidence considered post-hearing. The RPD erred when it failed to consider the Minister’s correspondence as an application. The RPD had an obligation to consider the Minister’s application and determine if the evidence was admissible within its rules. RPD rule 43(3) indicates that the RPD must consider any relevant factors, including, the document’s relevance and probative value; any new evidence the document brings to the proceedings; and whether the party, with reasonable effort, could have provided the document as required by rule [43].[45]

Board must consider each of the Rule 43(3) factors[edit]

Pursuant to Rule 43(3), in deciding this type of application, the Division must consider any relevant factors, including:

  • (a) the document’s relevance and probative value
  • (b) any new evidence the document brings to the proceedings
  • (c) whether the party, with reasonable effort, could have provided the document as required by rule 34

As such, the Board is required to consider the relevance, probative value, newness of the documents, as well as whether the party, with reasonable effort, could have provided the document on time, i.e. the factors enumerated in Rules 37(3)(a), (b), and (c). The court has held that "While the list of factors to be considered in Rule 37(3) is not exhaustive, the use of the word “including” rather than the words “such as” before the list of factors indicates the intent that each of the factors included in the sub-rule be considered. A failure to do so gives rise to a breach of procedural fairness."[46] As such, in a case where the Board's decision weighed only one factor, the court concluded that it had erred.

Rule 43(3) factors are not exhaustive, and as such, the Board may consider additional factors[edit]

The fact that, per Rule 43(3), the Division should consider "any relevant factors" means that it is not limited to the factors above, which are enumerated in the rule, and may consider other factors. In the words of Mr. Justice Near, "the list of factors to be considered in Rule 37(3) is not exhaustive".[46]

The consideration of the Rule 43(3) factors in past decisions[edit]

See the discussion of the identical factors in the commentary for Rule 36 above. Additional factors particular to post-hearing documents that have been considered have included:

  • Whether a claimant made an earlier application to provide post-hearing documents that did not include this type of document: Where a panel has provided a claimant with leave to submit some specified type of document post-hearing, the claimant should not expect that another, unrelated, type of document will be allowed absent an application on point. In Farkas v. Canada, the court noted that "the post-hearing documents actually submitted do not fit within the type for which the RPD had given leave to file, that is to say 'corroborative police and/or medical documents'. As the post-hearing evidence did not fall within the scope of the RPD’s grant of permission, the RPD would have been justified rejecting it."[47]

If credibility concerns emerge from documents submitted by a claimant post-hearing, the panel generally need not resume the hearing[edit]

The general rule is that the RPD has no obligation to return to a claimant with concerns arising from their own post-hearing submissions. The court has stated that "To do so would be onerous on the RPD. It must be kept in mind that it was up to the Applicants to submit credible and corroborative evidence to support their claim."[48] This conclusion may differ where the Minister is involved in a proceeding and their post-hearing submissions raise issues as to the credibility of the claimant, or vice versa.

Post-hearing documentary evidence submitted in response to an application from the other party is not covered by this rule[edit]

Where a party submits documents in response to an application made by the other party to a proceeding, the admissibility of those documents is determined by the more specific Rule 51, not by this more general rule: Canadian Refugee Procedure/Applications#Rule 51 - How to Respond to a Written Application. Rule 51 establishes a more permissive regime for accepting such documents than does Rule 43.

Must the panel consider an updated National Documentation Package issued by the Board post-hearing but pre-decision?[edit]

The court considered the question in Tambwe-Lubemba of whether a panel of the Board must consider updated country documents received by the Board post-hearing that are not explicitly placed on the file. The applicants in that case submitted that the panel hearing their claim should have considered information received by the Refugee Division's document centre after the hearing but before the decision had been rendered. What the Court held was that the panel was under no obligation to consider information that the members had not seen and that was not tendered by the claimants.[49]

References[edit]

  1. Refugee Protection Division Rules, SOR/2002-228, Rule 27.
  2. a b Hernandez Cortes v. Canada (Citizenship and Immigration), 2009 FC 583 (CanLII), para. 26.
  3. X (Re), 2014 CanLII 15012 (CA IRB), para. 16.
  4. Londono v. Canada (Citizenship and Immigration), 2011 CanLII 95605 (CA IRB), para. 17 (interpreting its analogous and identically-worded rule).
  5. Glibchenko v Canada (Public Safety and Emergency Preparedness), 2014 CanLII 95427 (CA IRB), para. 6.
  6. X (Re), 2013 CanLII 99305 (CA IRB), para. 15.
  7. Stellbrink v Canada (Citizenship and Immigration), 2013 CanLII 98269 (CA IRB), para. 5.
  8. Zhao v Canada (Citizenship and Immigration), 2017 CanLII 57822 (CA IRB), para. 9.
  9. a b Yared Belay v. Canada (Citizenship and Immigration), 2016 FC 1387 (CanLII), paras. 41-42 <https://www.canlii.org/en/ca/fct/doc/2016/2016fc1387/2016fc1387.html>.
  10. X (Re), 2014 CanLII 93295 (CA IRB), para. 34.
  11. X (Re), 2014 CanLII 95934 (CA IRB), paras. 14-15.
  12. X (Re), 2016 CanLII 107659 (CA IRB), para. 27.
  13. Immigration and Refugee Board of Canada, Policy Statement on Official Languages and the Principle of the Substantive Equality of English and French, Date modified: 2018-07-03 <https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/pnnpollo.aspx> (Accessed January 22, 2020).
  14. Official Languages Act, RSC 1985, c 31 (4th Supp), s 14 <http://canlii.ca/t/530sl#sec14> retrieved on 2020-01-25.
  15. Huang v Canada (Citizenship and Immigration), 2013 CanLII 98247 (CA IRB), para. 5.
  16. Da Costa Soares v. Canada (Citizenship and Immigration), 2007 FC 190 (CanLII), paras. 15-25.
  17. a b c Kinbrace Community Society, Refugee Hearing Preparation: A Guide for Refugee Claimants, 2019 Version, <https://refugeeclaim.ca/wp-content/themes/refugeeclaim/library/guide/rhpg-vancouver-en.pdf>, page 29 (accessed January 17, 2020).
  18. X (Re), 2017 CanLII 144401 (CA IRB), para. 10.
  19. Official Languages Act, RSC 1985, c 31 (4th Supp), s 18 <http://canlii.ca/t/530sl#sec18> retrieved on 2020-01-25.
  20. Devinat v. Canada (Immigration and Refugee Board), 1999 CanLII 9386 (FCA), [2000] 2 FC 212, par. 57, <http://canlii.ca/t/4ll0#57>, retrieved on 2020-01-25
  21. Bolanos Blanco v. Canada (Citizenship and Immigration), 2010 FC 280 (CanLII), paras. 12-20.
  22. Official Languages Committee on Dec. 16th, 2010, House of Commons Hansard <https://openparliament.ca/committees/official-languages/40-3/39/sylvia-cox-duquette-1/>.
  23. Immigration and Refugee Board of Canada, RPD Rules Regulatory Impact Analysis Statement, Date modified: 2018-07-04, Accessed January 3, 2020 <https://irb-cisr.gc.ca/en/legal-policy/act-rules-regulations/Pages/RiasReir.aspx>.
  24. Refugee Protection Division Rules, SOR/2002-228, Rule 28(2).
  25. X (Re), 2016 CanLII 151861 (CA IRB), para. 10.
  26. X (Re), 2014 CanLII 95934 (CA IRB), para. 15.
  27. Immigration and Refugee Board of Canada, Refugee Protection Division Practice Notice: Compliance with Refugee Protection Division Rules, Effective date: December 8, 2014 <https://irb-cisr.gc.ca/en/legal-policy/procedures/Pages/AviPraNotRpdSprComRulResReg.aspx> (Accessed January 25, 2020).
  28. Yeung v. Canada (Citizenship and Immigration), 2010 CanLII 80130 (CA IRB), para. 8.
  29. For more information see Society of Translators and Interpreters of British Columbia, www.stibc.org.
  30. a b Grandmont v. Canada (Citizenship and Immigration), 2010 CanLII 97579 (CA IRB), para. 43.
  31. Huang v. Canada (Citizenship and Immigration), 2012 CanLII 46522 (CA IRB), para. 19.
  32. University of Ottawa Refugee Assistance Project, UORAP Hearing Preparation Kit, Guide 3: Preparing Evidence for your Hearing <https://ccrweb.ca/sites/ccrweb.ca/files/hearing_preparation_kit.pdf>, page 14.
  33. Trboljevac v. Canada (Citizenship and Immigration), 2020 FC 26 (CanLII), para. 52.
  34. Immigration and Refugee Board of Canada, Notice to parties and counsel appearing before the Refugee Protection Division – voluminous country conditions evidence, Date modified: 2018-06-26 <https://irb-cisr.gc.ca/en/legal-policy/procedures/Pages/voluminous-country-conditions-evidence-preuve-volumineuse-relative-aux-conditions-dans-le-pays.aspx>.
  35. Thamotharem v. Canada (Minister of Citizenship and Immigration), 2007 FCA 198 (CanLII), [2008] 1 FCR 385.
  36. Hasan v. Canada (Minister of Citizenship and Immigration), 2004 FC 1537 (CanLII), para. 9-10.
  37. Immigration and Refugee Board of Canada, Chairperson Guidelines 7: Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division, Amended December 15, 2012 <https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/GuideDir07.aspx#FailureA4> (Accessed January 26, 2020), section 1.3.
  38. Hasan v. Canada (Minister of Citizenship and Immigration), 2004 FC 1537 (CanLII), para. 12.
  39. Petrovic v. Canada (Citizenship and Immigration), 2016 FC 637 (CanLII), para. 11.
  40. Aguilera v Canada (Minister of Citizenship and Immigration), 2008 FC 507, 167 ACWS (3d) 967.
  41. Mannan v. Canada (Citizenship and Immigration), 2015 FC 144 (CanLII), para. 52.
  42. Matingou-Testie v Canada (Minister of Citizenship and Immigration), 2012 FC 389, [2012] FCJ No 401 at para 43.
  43. X (Re), 2015 CanLII 108739 (CA IRB), paras. 13-19.
  44. Mannan v. Canada (Citizenship and Immigration), 2015 FC 144 (CanLII), para. 46.
  45. X (Re), 2016 CanLII 107435 (CA IRB), para. 17.
  46. a b Cox v. Canada (Citizenship and Immigration), 2012 FC 1220 (CanLII), para. 27.
  47. Farkas v. Canada (Citizenship and Immigration), 2014 FC 542 (CanLII), para. 13.
  48. Behary v. Canada (Citizenship and Immigration), 2015 FC 794 (CanLII), para. 31.
  49. Nagulesan v. Canada (Minister of Citizenship and Immigration), 2004 FC 1382 (CanLII), para. 13.