Canadian Refugee Procedure/165 - Powers of a Member

IRPA Section 165

The legislative provision reads:

Powers of a commissioner
165 The Refugee Protection Division, the Refugee Appeal Division and the Immigration Division and each member of those Divisions have the powers and authority of a commissioner appointed under Part I of the Inquiries Act and may do any other thing they consider necessary to provide a full and proper hearing.

History of this provision

Under the previous Immigration Act, the equivalent provision read as follows:

67. (1) The Refugee Division has, in respect of proceedings under sections 69.1 and 69.2, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction.
(2) The Refugee Division, and each member thereof, has all the powers and authority of a commissioner appointed under Part I of the Inquiries Act and, without restricting the generality of the foregoing, may, for the purposes of a hearing,
(a) issue a summons to any person requiring that person to appear at the time and place mentioned therein to testify with respect to all matters within that person's knowledge relative to the subject-matter of the hearing and to bring and produce any document, book or paper that the person has or controls relative to that subject-matter;
(b) administer oaths and examine any person on oath;
(c) issue commissions or requests to take evidence in Canada; and
(d) do any other thing necessary to provide a full and proper hearing.

With the advent of the Immigration and Refugee Protection Act, the above provision was amended to read as follows:

165. The Refugee Protection Division and the Immigration Division and each member of those Divisions have the powers and authority of a commissioner appointed under Part I of the Inquiries Act and may do any other thing they consider necessary to provide a full and proper hearing.

See also the Interpretation Act

Section 31(2) of the Interpretation Act provides that "where power is given to a person, officer or functionary to do or enforce the doing of any act or thing, all such powers as are necessary to enable the person, officer or functionary to do or enforce the doing of the act or thing are deemed to be also given."

Section 165: The scope of the power to "do any other thing they consider necessary to provide a full and proper hearing"

In addition to the power to summon witnesses, Members have the power to "do any other thing necessary to provide a full and proper hearing". The Board states that this power could include, among other things, allowing clerks, interpreters, and security guards to provide assistance with respect to a hearing. It also would include the power to adjourn and to change the venue of proceedings when necessary.

This legislative provision allows the Board to unilaterally adjust timelines in appropriate cases

An example of this provision being relied upon is that during the Covid-19 epidemic, the Board lengthened the time period that claimants had to provide a Basis of Claim form after making a claim at the Port of Entry. The practice notice doing so cited this provision of the Act ("[The Division]...may do any other thing they consider necessary to provide a full and proper hearing") as authority for that decision, as discussed in this commentary on RPD Rule 8: Canadian Refugee Procedure/Information and Documents to be Provided#This Rule applies to applications for an extension of time, but not decisions on the Board's own motion to extend the deadline.

A Division cannot rely upon the above provisions prior to or outside of a formal hearing

The court concluded in Canada v. Kahlon that the RPD has no power to compel evidence prior to or outside a formal hearing. That said, the Board may be obliged to assist an applicant in obtaining information, for example by requiring the Minister to make inquiries of relevant Canadian law enforcement agencies. For more details, see: Canadian Refugee Procedure/The Board's inquisitorial mandate#There is a shared duty of fact-finding in refugee matters.

Furthermore, the idea that these powers cannot be used outside of a formal hearing is difficult to reconcile with longstanding Board statements about its practices and how it has interpreted this power:

In the courts, it is inappropriate for a judge to engage in any sort of investigation, no matter how unsatisfactory the evidence appears to the judge. However, because of the non-adversarial nature of the Refugee Division and because its members have the powers and authority of commissioners appointed under Part I of the Inquiries Act, it is acceptable in certain circumstances for members of the Refugee Division to do their own research into the facts of a case.

As well, it does not appear that Kahlon considers the legislative history of this provision, which specifically removed the limitation on the power that specified that it was to be used only for a hearing.

See also: section 170 of the IRPA provides that the Refugee Protection Division, in any proceeding before it, may inquire into any matter that it considers relevant to establishing whether a claim is well-founded, a provision that was introduced with the IRPA. See: Canadian Refugee Procedure/170 - Proceedings#IRPA Section 170(a) - May inquire into any matter that it considers relevant to establishing whether a claim is well-founded.

The jurisdiction of a Member is not limited territorially within Canada

The Board has stated that:

The jurisdiction of a Refugee Division member is not limited territorially. A Refugee Division member who ordinarily hears cases in Montreal, for example, may also hear cases in Vancouver, and vice versa.

This provision may be cited in favour of an argument that the Board can order the Minister to facilitate the return to Canada of a claimant outside of Canada

Section 165 of the IRPA invests members of the Division with the authority of a commissioner under Part 1 of the Inquiries Act and the authority to “do any other thing they consider necessary to provide a full and proper hearing”. If a matter comes before the Division the claimant is outside of Canada, and which cannot be adjudicated over telecommunications, this provision could arguably be relied upon as authority for the proposition that the Division can order the Minister to facilitate the return of the person concerned to Canada, for example by issuing that individual a travel document.

But see IRPA s. 175(2), which provides that the IAD may require an officer to issue a travel document to an individual, a provision for which there is no equivalent applicable to the RPD and RAD, which could imply that those Divisions lack such authority. Furthermore, under the previous Immigration Act, the Board stated that its Refugee Division lacked jurisdiction to order the Minister or Citizenship and Immigration Canada (CIC) to remove or not to remove someone from Canada or to allow someone to come to Canada for the purpose of a hearing.

Part I of the Inquiries Act

The complete text of Part I of the Inquiries Act reads:

PART I
Public Inquiries

Inquiry
2 The Governor in Council may, whenever the Governor in Council deems it expedient, cause inquiry to be made into and concerning any matter connected with the good government of Canada or the conduct of any part of the public business thereof.

Appointment of commissioners
3 Where an inquiry as described in section 2 is not regulated by any special law, the Governor in Council may, by a commission, appoint persons as commissioners by whom the inquiry shall be conducted.

Powers of commissioners concerning evidence
4 The commissioners have the power of summoning before them any witnesses, and of requiring them to
(a) give evidence, orally or in writing, and on oath or, if they are persons entitled to affirm in civil matters on solemn affirmation; and
(b) produce such documents and things as the commissioners deem requisite to the full investigation of the matters into which they are appointed to examine.

Idem, enforcement
5 The commissioners have the same power to enforce the attendance of witnesses and to compel them to give evidence as is vested in any court of record in civil cases.

These provisions allow a panel to compel testimony and the production of evidence

As stated in the text The Conduct of Public Inquiries, the central procedural feature of the Inquiries Act is to "authorize commissioners to compel testimony and the production of evidence". The RPD will exercise its power to summon individuals through the framework of RPD Rules 44-48: Canadian Refugee Procedure/RPD Rules 44-48 - Witnesses. For a discussion of the Board's power to summon documents, see Canada v. Kahlon.

These powers must be employed fairly, which will generally require providing notice to the Minister

Division Members have the powers of a commissioner appointed pursuant to the Inquiries Act. This gives them the power to summon witnesses and of requiring them to give the evidence set out above in section 4 of the Act. Where a panel exercises these powers, it must do so in a manner that is fair to the Minister, whether or not it is a party to the proceeding as defined in the rules of the relevant Division. For example, in Canada v. Miller, the Minister had not intervened in proceedings and when the RAD sought further submissions from the Appellants, the Minister was not notified of this. The Federal Court held that this was procedurally unfair and set aside the decision on this basis. See also: Canadian Refugee Procedure/RPD Rule 1 - Definitions#Procedural fairness may be owed to the Minister despite them not being a party to a proceeding.

Part III of the Inquiries Act

Part III of the Inquiries Act is a general provision that applies to commissioners with powers under Part I, as well as to commissioners appointed under Part II of the Act (which is not relevant to IRB Board Members):

PART III
General

Employment of counsel, experts and assistants
11 (1) The commissioners, whether appointed under Part I or under Part II, may, if authorized by the commission issued in the case, engage the services of
(a) such accountants, engineers, technical advisers or other experts, clerks, reporters and assistants as they deem necessary or advisable; and
(b) counsel to aid and assist the commissioners in an inquiry.

Experts may take evidence and report
(2) The commissioners may authorize and depute any accountants, engineers, technical advisers or other experts, the services of whom are engaged under subsection (1), or any other qualified persons, to inquire into any matter within the scope of the commission as may be directed by the commissioners.

Powers
(3) The persons deputed under subsection (2), when authorized by order in council, have the same powers as the commissioners have to take evidence, issue subpoenas, enforce the attendance of witnesses, compel them to give evidence, and otherwise conduct the inquiry.

Report
(4) The persons deputed under subsection (2) shall report the evidence and their findings, if any, thereon to the commissioners.

Parties may employ counsel
12 The commissioners may allow any person whose conduct is being investigated under this Act, and shall allow any person against whom any charge is made in the course of an investigation, to be represented by counsel.

Notice to persons charged
13 No report shall be made against any person until reasonable notice has been given to the person of the charge of misconduct alleged against him and the person has been allowed full opportunity to be heard in person or by counsel.