Date: 20000601
Docket: IMM-1091-99
OTTAWA, ONTARIO, JUNE 1, 2000
| Before: J.E. DUBÉ J. |
Between:
Vimalathas ASEERVATHAM
- and -
Joseph W. ALLEN,
Plaintiffs,
- and -
The Minister of Citizenship and Immigration,
Defendant.
ORDER
The application for judicial review is dismissed.
| Judge |
Certified true translation
Martine Brunet, LL. B.
Date: 20000601
Docket: IMM-1091-99
BETWEEN:
Vimalathas ASEERVATHAM
- and -
Joseph W. ALLEN,
Plaintiffs,
- and -
The Minister of Citizenship and Immigration,
Defendant.
REASONS FOR ORDER
DUBÉ J.:
[1] This application for judicial review is from a decision on February 11, 1999 by the Refugee Division of the Immigration Board ("the Refugee Division") ordering that the plaintiff"s application for refugee status be heard at 8:30 a.m. on March 22, 1999 despite the fact that counsel for the plaintiff, Joseph Allen, was not available on that date.
| 1. Statement of facts |
[2] It should be noted at the outset that Mr. Allen represents a large number of claimants before the Refugee Division. In January 1999 he was representing about 300 claimants from Sri Lanka, in addition to about forty claimants from other countries such as Bangladesh. The year before, in spring 1998, the Refugee Division encountered major problems completing the hearing rolls because there were insufficient counsel available.
[3] In November 1998 the director of the Montréal regional office contacted Mr. Allen and another counsel in a similar position to try and accommodate counsel"s availability dates. Following this meeting the Registrar of the Refugee Division informed Mr. Allen on January 12, 1999 that a roll call would be held on February 8, 9 and 11, 1999 to fix dates for as many of his cases as possible. It appeared that the availability list provided by Mr. Allen was insufficient to dispose of all his cases. Claudia Gagnon, who was representing Mr. Allen, objected to the date of March 22, 1999 at issue because on that date Mr. Allen was representing another client. The hearing went ahead on the scheduled date nevertheless and Mr. Forget, also of Mr. Allen"s office, represented the plaintiff. Mr. Forget did not object to the holding of the hearing. The plaintiff himself also wanted the matter to proceed.
[4] On April 28, 1999 the Refugee Division dismissed the plaintiff"s refugee claim. On August 25, 1999 Denault J. dismissed the application for leave to seek judicial review of that decision.
[5] In conjunction with these remedies against the unfavourable decision of the Refugee Division, the plaintiff on March 4, 1999 initiated an application for leave and judicial review of the aforementioned order setting the date. On March 18, 1999 Teitelbaum J. dismissed the plaintiff"s motion for a stay of the hearing set down for March 22, 1999. On October 12, 1999 I allowed the application for leave to file for judicial review of the order setting the date. Finally, on December 6, 1999 Lutfy A.C.J. dismissed the defendant"s motion to strike the aforesaid application for judicial review.
| 2. Point at issue |
[6] The point at issue is whether the Refugee Division"s decision of February 11, 1999 setting the hearing of the plaintiff"s claim down for 8:30 a.m. on March 22, 1999, knowing that Mr. Allen, the counsel of record, was not available at that time, infringed a rule of law or natural justice.
| 3. Relevant provisions of Act |
[7] The relevant provisions of the Immigration Act are as follows:
| 68. (1) Sittings " The Refugee Division shall sit at such times and at such places in Canada as are considered necessary by the Chairperson for the proper conduct of its business. |
| (2) Informal proceedings " The Refugee Division shall deal with all proceedings before it as informally and expeditiously as the circumstances and the considerations of fairness permit. |
| 69. (1) Right to counsel " In any proceedings before the Refugee Division, the Minister may be represented at the proceeding by counsel or an agent and the person who is the subject of the proceedings may, at that person"s own expense, be represented by a barrister or solicitor or other counsel. |
| (6) Adjournments " The Refugee Division shall not adjourn any proceedings before it, unless it is satisfied that an adjournment would not unreasonably impede the proceedings. |
| 69.1 (1) Hearing into refugee claims " Subject to subsection (2), where a person"s claim to be a Convention refugee is referred to the Refugee Division pursuant to section 46.02 or 46.03, the Division shall, as soon as is practicable, commence a hearing into the claim. |
| (3) Notice of hearing " The Refugee Division shall notify the person who claims to be a Convention refugee and the Minister in writing of the time and place set for the hearing into the claim. |
| (5) Opportunity to be heard " At the hearing into the person"s claim to be a Convention refugee, the Refugee Division |
( a) shall give
| (i) the person a reasonable opportunity to present evidence, question witnesses and make representations . . . |
| (9) Decision " The Refugee Division shall determine whether or not the claimant is a Convention refugee and shall render its decision as soon as possible after completion of the hearing and send a written notice of the decision to the claimant and the Minister. |
| 4. Plaintiff"s allegations |
[8] The plaintiff maintained that the members of the tribunal committed a breach of the rules of natural justice by refusing him the right to counsel of his choice when they peremptorily set the date of March 22, 1999, at 8:30 a.m., though fully aware that Mr. Allen was not available on that date as the same tribunal had already reserved that date for him for another case.
[9] The plaintiff sought to make a distinction between two situations. The first was the case of a refugee claimant who comes to a law firm already having a hearing date set by the tribunal.
The second case, which is the case at bar, is where a claimant has his counsel already and the tribunal summons the latter to set a hearing date. In the second case, the plaintiff submitted, the tribunal should not deny the claimant the right to counsel of his choice. Mr. Allen had been handling the plaintiff"s claim for over two years.
[10] The plaintiff maintained that he should not be the victim of mismanagement of cases by the tribunal. He pointed out that this Court has already held that in political refugee matters s. 7 of the Charter of Rights and Freedoms ("the Charter") guarantees an absolute right to counsel (see Mathon v. M.E.I. ).1 This is natural, the plaintiff submitted, in view of the serious nature of the questions for discussion, the claimant"s difficulty understanding how the case proceeds and the complexity of applying the refugee definition criteria to the circumstances of the claimant"s situation (see Howard v. Stoney Mountain Institution ).2
[11] The plaintiff admitted that the tribunal has full control of its proceedings and is not obliged to agree to the adjournment dates desired by the plaintiff, but argued that it should not infringe his right to the counsel of his choice, especially if counsel has been handling the case for over two years and has never sought an adjournment date.
[12] The plaintiff referred to a recent judgment of the Ontario Court of Appeal, R. v. McCallen.3 This was a criminal matter in which counsel for the accused could not be available within three months after his client"s first appearance. The trial judge did not grant the delay. The decision was appealed and the appeal was allowed. The Court of Appeal referred to s. 10(b ) of the Charter, which provides that every one has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. The Court of Appeal held that a four-month delay to ensure the availability of counsel for the accused was not unreasonable. Counsel for the accused was not available because he had to defend another accused in a murder case for which the date had already been fixed. The trial judge was prompted by an unduly rigid adherence to "the 90-day rule", that a trial must proceed within 90 days of the first appearance.
[13] The Ontario Court of Appeal nonetheless remarked that the right to counsel of one"s choice is not an absolute right and is subject to obvious limitations.
| 5. Defendant"s allegations |
[14] The defendant submitted that under the relevant legislation it is the Chairperson of the Refugee Division who selects the dates and times of its sitting depending on its work (s. 68(1)). The Refugee Division is to deal with all proceedings before it informally and expeditiously (s. 68(2)). Under s. 69(1), the Minister may be represented at the proceedings by counsel or an agent and the person who is the subject of the proceedings may, at that person"s own expense, be represented by a barrister or solicitor or other counsel. Where a claim is referred to the Refugee Division it must commence a hearing as soon as is practicable (s. 69.1(1)).
[15] Nothing in the Immigration Act or the Refugee Division Rules (SOR/93-45) requires the Refugee Division to consult the claimant or his counsel in setting a date for hearing his claim.
[16] The plaintiff has the right to be represented by counsel or an agent, but that right does not mean that the plaintiff can insist on adjournments or dates of his choice if his counsel is not available. The leading case on this point is a Federal Court of Appeal judgment, Pierre v. Minister of Manpower and Immigration.4 In that case, an application had been made to the Court to quash the deportation order made against the applicant because of the denial of an adjournment to allow the latter to retain the services of counsel. The special inquiry officer"s refusal to adjourn an imperative hearing led to the withdrawal of the applicant"s counsel.
[17] The Court of Appeal held that a superintending tribunal such as the superior court does not have jurisdiction to review the refusal of an adjournment, unless that refusal results in the decision made by the tribunal at the termination of the hearing being voidable for a breach of the requirements of natural justice. The question must be answered by the Court in the circumstances of the case, namely whether the special inquiry officer " by an improper exercise of his discretion in setting the dates of the hearing " made the disputed deportation order without giving the applicant a reasonable opportunity to answer what was alleged against him.
[18] The aforesaid rules apply to the adjournment. The following paragraph by Jackett C.J. relates more specifically to the setting of a hearing date:
| Much was made in argument of a problem that arises where counsel employed in an administrative proceeding have other commitments. It was suggested that an administrative tribunal must so arrange its hearings as to enable counsel who have retainers to appear for other clients in "higher courts" to do what is necessary to serve such other clients on a priority basis and still do what is necessary to serve the client who has retained them to appear before the administrative tribunal. I am of opinion that there is no principle that requires an administrative tribunal to follow such a course. This is not to say that an administrative tribunal, like all other tribunals, should not give all reasonable consideration to counsel"s problems where that is feasible consistent with the interest of other parties and its public duty. |
[20] On the right to retain counsel of one"s choice, Kelly D.J.A. offered his concise and apposite opinion:
| 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, counsel chosen by him from among those qualified to appear 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. |
[20] In a more recent judgment, Linartez v. Canada,5 Nadon J. of this Court dealt with the right to counsel. He cited inter alia Eberle J. of the Ontario Supreme Court, who offered his opinion
in R. v. Taylor:6
| . . . In my view, the right to counsel of the accused"s choice does not carry with it the right to dictate the date for trial. The right to counsel of the accused"s choice, in my opinion, means counsel of the accused"s choice who is able to appear on the date which has been set for trial. |
| 6. Analysis |
[21] Essentially, the question is whether in the case at bar the denial of an adjournment or the setting of a peremptory date to allow the defendant to be represented by the counsel of his choice infringes a rule of law or natural justice. In this regard, I entirely concur with the opinion of Marceau J.A. of the Federal Court of Appeal in Vairamuthu v. M.E.I.:7
| . . . For a court of review to be able to criticize a tribunal for having denied a request for adjournment, it must be clear that in the circumstances of the case a breach of natural justice or fairness has resulted from the decision. |
[22] In my opinion, I cannot conclude in the circumstances of the case at bar that the Refugee Division infringed a rule of law or natural justice when it set a peremptory date for hearing the plaintiff"s application. The evidence entered in the record by affidavit clearly indicated that it was recognized that this tribunal had made efforts to prepare a hearing roll that would correspond to the availabilities supplied by Mr. Allen as far as possible. If the latter preferred to represent this plaintiff on the date set himself, he could have been replaced by one of the counsel in his law firm at the hearing of the other case set down for the same day. He in fact chose to be replaced by Mr. Forget at the hearing in question. He could also have been replaced by Mr. Zambelli, who argued
before this Court at the hearing of the instant review application. These two members of his firm are competent and experienced in immigration matters.
[23] In fact, as mentioned above, on March 22, 1999 the plaintiff appeared at the hearing assisted by Mr. Forget and neither objected to the case going forward before the Refugee Division on that date.
[24] I agree with the plaintiff that two different situations may arise, namely that of a claimant who obtains counsel once the date of the hearing is fixed and that of a claimant who is already represented by counsel, and the latter is summoned to set a hearing date. In the first case, the claimant must suffer the consequences of his procrastination. In the second case, it is right and proper that the tribunal should consider the counsel"s availability before setting a peremptory date. That is precisely what the Refugee Division undertook to do in the case at bar. It made an effort to accommodate Mr. Allen"s availability before setting a date.
[25] This tribunal is under no obligation to comply with the requirements of counsel. 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. Moreover, specialized tribunals such as the Refugee Division are generally aware, not only of the workload of law firms, but also of their staff and resources. A law firm which handles over a hundred immigration cases cannot limit itself to the availability of one particular counsel and impose this on the tribunal.
[26] Accordingly, this application for judicial review is dismissed.
[27] In my opinion, there is no serious question of general importance arising from this case to be certified pursuant to s. 83(1) of the Immigration Act. Rather, this is a sui generis case decided in light of well-settled principles.
| Judge |
OTTAWA, Ontario
June 1, 2000
Certified true translation
Martine Brunet, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT No.: IMM-1091-99 |
| STYLE OF CAUSE: VIMALATHAS ASEERVATHAM et al. |
v.
MCI
| PLACE OF HEARING: MONTRÉAL, QUEBEC |
| DATE OF HEARING: MAY 24, 2000 |
| REASONS FOR ORDER AND ORDER BY: DUBÉ J. |
| DATED: JUNE 1, 2000 |
APPEARANCES:
| PIA ZAMBELLI FOR THE APPLICANT |
| CHRISTINE BERNARD FOR THE RESPONDENT |
SOLICITORS OF RECORD:
| MARTIN FORGET FOR THE APPLICANT |
| Morris Rosenberg FOR THE RESPONDENT |
Deputy Attorney General of Canada
__________________1 (1990) 38 Adm. L. R. 193, at 208 (F.C.T.D.), 9 Imm. L.R. 132.
3 43 O.R. (3d) 56 (Ont. C.A.).
5 (1995), 109 F.T.R. 300 (Nadon J.).