Federal Court Decisions

 

 

Date: 20130606

Docket: IMM-4898-12

Citation: 2013 FC 609

Ottawa, Ontario, June 6, 2013

PRESENT:    The Honourable Mr. Justice de Montigny

 

 

BETWEEN:

	HOWARD SEYMOUR STEPHENS
		Applicant
	and
	THE MINISTER OF CITIZENSHIP AND IMMIGRATION
		Respondent

 

           REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               Mr. Howard Seymour Stephens (the “Applicant”) seeks judicial review of the decision of Carolyn McCool (the “Board Member”), a member of the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB), dated April 26, 2012.  At the hearing, the Board Member refused to grant a request for a postponement in light of the fact that the Applicant's counsel was not present.  She concluded in her decision that the Applicant is not a Convention Refugee or person in need of protection. 

 

[2]               For the reasons set out below, I find that this application for judicial review ought to be dismissed.  This case also raises a serious issue with respect to lawyers acting as witnesses, upon which I shall also comment as part of my reasons.

 

Background

[3]               The Applicant, born April 6, 1972, is a citizen of Jamaica.  He arrived in Canada on or about July 7, 2005, and claims that he fled Jamaica fearing for his life. 

 

[4]               The Applicant's refugee claim is premised on a well-founded fear of persecution on the basis of his perceived political opinion and membership in a particular social group, as well as on the basis of risk under section 97 of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA).  The Applicant states that he was in danger in Jamaica because a businessman gave him a donation to assist with a youth soccer club that he started in 2004.  Due to rumours that the money was in fact provided by a politician belonging to the Jamaica Labour Party (JLP) who was vying for political office, the Applicant's life was allegedly put in great danger by members of a political gang operating in support of the competing People's National Party (PNP).

 

[5]               The Applicant states that he moved from town to town in hiding before procuring the services of an agent who helped him travel to Canada using false papers.  Since moving to Canada, the Applicant has married. He and his wife each have a child from a prior relationship and the four live together as a family.  The football club was dissolved when the Applicant left for Canada in 2005.

 

[6]               The record contains an affidavit from the mother of a former club member who was murdered on April 20, 2009, after reportedly resuming operation of the club in 2008.  The mother notes that her son had been threatened by the PNP gang, that the police refused to take action, and that the police have not made any arrest in connection with her son's murder.  She does not directly comment on who she believes was responsible for the murder or any connection between the death and the football club, other than stating that the PNP gang threatened her son's life once he began leading the team. 

 

[7]               After arriving in Canada in 2005, the Applicant did not make his claim for refugee protection until September 2011.  He states in his affidavit before this Court that he was told when he first arrived that people from the Caribbean Islands could not make refugee claims.  An immigration consultant allegedly told him he would have to pay $6,000 in order to be represented and, having met his wife, she applied to sponsor him in 2009.  At the time of the Applicant's hearing, he stated that the spousal application had been refused and was pending before this Court.

 

[8]               The Applicant states that he attempted to file for refugee protection in 2010, but withdrew the claim on the advice of the woman working at the desk of the immigration office.  According to him, she noted the existence of his sponsorship application and said that since his sponsorship looked very good, he should remove his refugee claim.  He states that he accepted her advice since he was not familiar with the refugee system. 

 

[9]               At the time he submitted his application and signed his Personal Information Form (PIF) in the fall of 2011, the Applicant was represented by an immigration consultant, Sandra Bowen.  The RPD was advised that, due to disagreements and conflict between him and the consultant, he had retained Ms. Anaele as counsel on January 16, 2012; however, a request from Ms. Bowen to be removed as counsel of record was only received by the IRB on February 29, 2012 and granted on March 6, 2012.

 

[10]           On January 20, 2012, Ms. Anaele submitted a request for a postponement of the hearing date, which had allegedly been scheduled for March 12 by Ms. Bowen, since Ms. Anaele would be on vacation at that time.  It is not entirely clear from the record when the Applicant and Ms. Anaele learned of the date scheduled for the hearing.  Regardless, the Applicant attests to the fact that he was not aware that the hearing had been scheduled when he retained Ms. Anaele.

 

[11]           A decision dated January 25, 2012 refused the initial request for postponement, holding that “claimants must choose counsel willing and able to proceed on the date scheduled; Guideline 6, Section 2.6” (Certified Tribunal Record (CTR), p. 46).  The Applicant did not seek judicial review of this interim decision.

 

[12]           On February 6, 2012, both the Applicant and Ms. Anaele were sent a notice to appear for the March 12 hearing.  The notice contained the following statement and instructions:

You must be present and ready to proceed by the scheduled start time.  If you or your counsel fail to appear as required, the RPD may, after giving you a reasonable opportunity to be heard, determine your claim to be abandoned.

 

[…]

 

When you hire counsel after a date has already been set for your hearing, you are responsible for making sure that your counsel is available and ready to proceed on the scheduled date.  The RPD may not change the date or time of your hearing because your counsel cannot attend, therefore it may be necessary for you to hire new counsel who is available on the scheduled date.

 

[13]           On the day of the hearing, Ms. Anaele provided the Applicant with a letter stating that “due to urgent medical reasons” she would not be able to attend the afternoon hearing and requesting that the hearing be rescheduled for a date in June 2012.  She faxed the same document to the IRB.  A review of the fax suggests it was received at 10:05 a.m. (CTR, p. 60).

 

[14]           The request for postponement was denied and the hearing proceeded, with reasons for the refusal given on the record.  The record reveals that the Board Member considered the following:

            i)          Ms. Anaele’s January 20, 2012 request for postponement due to her holiday schedule was denied, and the Applicant was required to choose counsel available for the date;

            ii)         The Applicant claimed to have seen Ms. Anaele the morning of the hearing.  He explained that she had decided to help his family despite her prior plans and that they were prepared to proceed on March 12 (having met the weekend before).  The day of the hearing, however, she was really not feeling well and planned to visit her doctor.  She was at her office for the sole purpose of giving the Applicant her letter and had her daughter drive her there.

 

[15]           The Board Member found that the request was “not strong enough” to put off the date of the hearing, noting that she had concerns “about counsel who brings multiple requests for – that is numerous requests for a postponement of the hearing” (CTR, at p. 118).  She noted that there was no evidence to persuade her that there were in fact urgent medical reasons for requesting the delay and that the fact that she was well enough to go in to her office raised questions, despite the Applicant’s claim that her daughter had driven her.

 

[16]           An affidavit submitted to this Court by the Applicant provides an explanation of the morning’s events, much of which merely recounts relevant information provided to the Applicant by his counsel.  The affidavit suggests that Ms. Anaele cancelled her vacation plans when the Board refused her initial request and that, on the day of the hearing, she was very ill but went to her office for an emergency stay motion.

 

[17]           The affidavit states that she was driven to her office very early in the morning by her children and that, despite completing the stay hearing, she was unable to go to the afternoon hearing because she was very ill and had an appointment with her doctor.  In addition to faxing the Board and providing the Applicant with a letter, the affidavit states that Ms. Anaele telephoned the Board and requested that the acting case officer contact her on her cell phone if there was a problem with the request for postponement, but that no such call was made.  The affidavit states that the hearing was the first scheduled in the case and not peremptory and that the process affected the Applicant’s ability to present his case as it was unfair, unjust and very traumatizing.

 

[18]           The Applicant claims in his affidavit that he spoke to Ms. Anaele after the hearing, while she was at her doctor’s office, and that Ms. Anaele later informed him that it took her three days to obtain the name of the Board Member, following which her attempts to contact the Board Member and the acting case officer went unanswered.  The Applicant argues that, due to the absence of his counsel, he was prevented from bringing out the salient issues in his claim and from presenting additional documentary evidence.

 

[19]           A letter from Ms. Anaele to the chairperson of the IRB, dated March 15, 2012 (Application Record, p. 29), clarifies that the health reasons which prevented Ms. Anaele from attending the hearing included dizziness, cough and headache. The letter establishes many of the facts set out in the Applicant’s affidavit, also indicating that Ms. Anaele was scheduled to see her doctor at 1:15 p.m. and that, after hearing the stay, she waited for her client (since she was already at the office and they had planned to meet there prior to the hearing) in order to explain her medical condition and provide him with the faxed letter.  She further states as follows:

I was not contacted by the IRB as such I presumed all was well.  While at the doctor’s [office] at about 2pm, I decided to contact my client to find out what happened since nobody had contacted me and he informed me that the panel member proceeded with the hearing without me despite my letter.

 

[…]

 

I consider the panel member’s conclusion to be disrespectful of my professionalism and a stain on my reputation.  I have 26 years of experience as a lawyer and have been practicing in Ontario for 16 years.  I have a good and professional reputation which I have maintained and intend to continue to maintain.  I am a lawyer in good standing with the Law Society of Upper Canada.  I have always attended all the scheduled hearings except on occasions where I am ill.  Furthermore, the fact that I earlier requested for an adjournment because I was scheduled for a vacation during this period has nothing to do with my medical condition.  There is evidence that I have cancelled my vacation solely because of this hearing and would have been available for the hearing if not for my health reasons.

 

My health is primary to me and I would not have been able to present the case or represent my client adequately due to my medical condition on the day of the hearing.

 

[…]

Decision under review

[20]           The Board Member addressed the request for postponement as a preliminary matter, noting the denied request relating to counsel’s holidays and the events described by the Applicant.  She stated that the request was denied for the reasons given on the record, which she summarized as follows:

 [5] […] The panel noted the history of postponement requests, the fact that counsel first said that she was going to be on holidays this week, the lack of information as to the urgent medical matter, and the fact that counsel had been well enough to meet the claimant in her office the morning of the hearing.

 

[6] It was the decision of the panel that in all of these circumstances, the reasons for a postponement were not sufficient to justify putting the case off.  The postponement request was denied and the hearing was held, without counsel present.

 

[21]           With respect to the refugee claim itself, the Board Member summarized the Applicant’s allegations, noting that he had submitted it was not possible to get a copy of the police report he claimed to have made in 2005.  She also summarized the Applicant’s reasons for the long delay in claiming protection in Canada and his comments on the affidavit provided by the mother of the murdered Marcellino Almando Johnson, noting that there was nothing tying the circumstances of Marcellino to the Applicant.  She noted also that no evidence has been provided from anyone who was involved with the football club in or after 2008.  When asked what risk the Applicant would face in Jamaica now, after seven years, he could only point to the existence of a Don culture in Jamaica and to the fact that political violence in the country remains as endemic as ever.

 

[22]           According to the Board Member, the determinative issues in the case were those of (a) a delay in claiming, which goes to subjective fear, and (b) a lack of evidence demonstrating the objective basis of the claim as it arose in 2004-2005 and as it is alleged to still exist in 2012.  The Board Member concluded that the Applicant had failed to prove on a balance of probabilities that he was in need of refugee protection.

 

[23]           She noted in respect of the first point that a delay in claiming of six years is “extremely significant” and fatal to the claim “in the absence of any explanation which is found to be reasonable” (para 18).  The Applicant’s explanations were held not to be satisfactory as the Board Member found it unlikely that he would base decisions on when and how to apply on casual advice rather than seeking out competent advice “either from an official of the Government of Canada, or from a qualified lawyer, consultant or community worker” (para 19).  The Applicant’s section 96 claim could not succeed due to a resulting lack of subjective fear. 

 

[24]           With respect to the Applicant’s section 97 claim, the Board Member concluded that the Applicant did not believe that he would face the relevant risks due to the same unexplained delay.

 

[25]           As for the evidence provided, the Board Member acknowledged the Marcellino affidavit and the country conditions, but found that the documentary evidence simply did not bear out the Applicant’s assertions regarding risk in Jamaica.

 

Issues

[26]           The Applicant does not take issue with the Board Member’s substantive finding relating to his refugee claim.  The only question to be addressed on this application for judicial review is whether the RPD breached its duty of fairness in refusing the Applicant’s request for postponement.

Analysis

[27]           As a preliminary issue, the Respondent submits that the Applicant’s affidavit is based on statements provided to him by his counsel about events that she claims occurred.  In the Respondent’s view, this is totally inappropriate and, as a result, she suggested that a number of paragraphs in the Applicant’s affidavit should be struck or given no weight.

 

[28]           I entirely agree with the position taken by counsel for the Respondent.  Rule 82 of the Federal Courts Rules (SOR/98-106) explicitly forbids a solicitor from both deposing to an affidavit and presenting argument to the Court based on that affidavit.  When counsel’s own credibility is at issue, it is best for counsel to testify and to ask another counsel to represent his or her client.  Indeed, this is precisely what the Law Society of Upper Canada recommends in such a situation.  In the Commentary on Rule 4.02(2) of the Law Society of Upper Canada’s Rules of Professional Conduct (forbidding a lawyer who appears as advocate to testify before the tribunal), it is stated: “[…] The lawyer should not in effect appear as an unsworn witness or put the lawyer’s own credibility in issue.  The lawyer who is a necessary witness should testify and entrust the conduct of the case to another lawyer”.

 

[29]           In the case at bar, counsel indirectly infringed Rule 82 by having the Applicant swear an affidavit based at least in part on information that she provided to him and of which he had no personal knowledge.  This cannot be condoned and is contrary to the spirit of Rule 82, as it puts counsel in the position of arguing on the basis of her own evidence: Osagie v Canada (MCI), 2004 FC 1368, at paras 22-23.   Genuine affiants should not attempt to shield themselves from cross-examination by, in effect, appearing as unsworn witnesses. It is true, as argued by counsel for the Applicant, that some of the facts upon which he testified are based on documentary evidence, that is, on letters sent by counsel to the IRB. However, many paragraphs of his affidavit are based on hearsay, and are not confined to facts within the deponent’s personal knowledge as required by Rule 81. 

 

[30]           To the extent that an affidavit purports to provide hearsay evidence, little or no weight ought to be afforded to it.  I also note that Rule 81(2) of the Federal Courts Rules permits the Court to draw an adverse inference from a party's failure to provide evidence from persons having personal knowledge of facts otherwise presented on belief.  For those reasons, I agree that paras 19, 20, 21, 23, 25-29, 35 and 40-44 of the Applicant's affidavit must either be struck or given very little weight, to the extent that they merely replicate what is already found in the documentary evidence or amount to hearsay. 

 

[31]           With respect to the applicable standard of review, I also agree with counsel for the Respondent that the RPD’s decision to postpone or adjourn the Applicant’s refugee claim calls for deference.  The decision of the RPD is a discretionary one, even if that discretion must be exercised in light of the factors listed in subsection 48(4) of the Refugee Protection Division Rules, SOR/2002-228 (now repealed).  Therefore, the Court will not intervene unless it is found that the RPD was unreasonable in the application of the factors listed in subsection 48(4): see Philistin v Canada (MPSEP), 2011 FC 1333 at para 8; Omeyaka v Canada (MPSEP), 2011 FC 78 at para 13; Julien v Canada (MCI), 2010 FC 351 at para 33 [Julien]. Even then, the Court will only step in if an applicant can establish that the refusal to postpone or adjourn a hearing resulted in a breach of procedural fairness: see Telez v Canada (MCI), 2013 FC 102 at paras 17-18 [Telez]; Javadi v Canada (MCI), 2012 FC 278 at para 25 [Javadi]; Wagg v Canada, 2003 FCA 303 at para 19 [Wagg].

 

[32]           The Applicant and the Respondent obviously focus their arguments on different factors among those set out in Rule 48(4) of the RPD Rules. That provision reads as follows:

[33]           In her decision, the Board Member summarized her reasons for refusing the request for postponement as follows:

5          The panel denied the request for a postponement and gave reasons on the record. The panel noted the history of postponement requests, the fact that counsel first said that she was going to be on holidays this week, the lack of information as to the urgent medical matter, and the fact that counsel had been well enough to meet the claimant in her office the morning of the hearing.

 

[34]           It is true that the transcript of the hearing reveals that the Board Member also took into consideration the reasonableness of the delay requested, and that the Applicant was in Canada for six and a half years.  Nevertheless, one can safely assume that the factors summarized in her reasons were the most important factors underlying her decision to refuse the request for postponement.

 

[35]           In my view, these factors were far from being sufficient to refuse the delay requested. It appears that the Board Member’s decision was very much tainted by the fact that counsel had previously made a request to change the date of the hearing because she had planned a vacation before being retained by the Applicant. In fact, it is clear that counsel did not depart on her planned vacation and had no apparent reason not to attend the hearing if not for her ill health.  Indeed, the fourth factor outlined by the Board Member (that counsel was well enough to meet the Applicant in her office the morning of the hearing) suggests that she accepts that counsel had not gone on holidays.  It was therefore entirely inappropriate to dwell on this factor as justification to deny the request for postponement on the day of the hearing, as counsel made herself available when her first request was rejected.

 

[36]           As for the lack of information regarding her medical condition, it would obviously have been preferable for counsel to provide additional information regarding her circumstances.  I note, however, that this Court has found in previous decisions that it may be both unreasonable and unfair to question the truthfulness of reasons provided by a representative for another lawyer’s absence: see Telez, above, at para 13.  One would expect that this would apply to at least an equal degree where the reason for absence is offered by counsel themselves (whether in writing or in person).  Besides, the decision regarding the postponement was made on the spot and the final decision seems to have been written the day after the hearing, so any medical document corroborating counsel’s inability to attend the hearing would most likely have been to no avail if only obtained when she attended her physician’s office on the afternoon of the hearing.  Finally, the fact that counsel was well enough to meet the Applicant at her office the morning of the hearing should not necessarily have been held against her.  First of all, although the Board Member was not aware of the stay motion, there is a huge difference between attending a hearing by phone in one’s office (or attending at your office to communicate with your client and request a postponement from the RPD) and representing a client in a formal hearing at the Immigration and Refugee Board in person.  Moreover, an argument could be made that counsel’s participation in the hearing of a stay motion on behalf of a client speaks to her professionalism, as time was much more of the essence in such a proceeding than in the hearing of a refugee claim. As a matter of fact, the same can be said of her attempt to arrange for a postponement of the hearing before the Board Member on that same day.

 

[37]           In addition, the Applicant submits that the Board failed to consider other relevant factors found in Rule 48(4) of the RPD Rules before making its decision.  For instance, the medical reason clearly amounted to an exceptional circumstance (Rule 48(4)(a)), there had been no previous delays in the hearing of the claim (Rule 48(4)(h)), counsel has over 15 years of experience and no questions were raised regarding her reputation (Rule 48(4)(g)), the hearing date was not marked peremptory (Rule 48(4)(i)), and the request to adjourn would not unreasonably delay the proceedings (Rule 48(4)(j)).

 

[38]           This is not to say that the Applicant was entitled to a postponement of his hearing.  As previously mentioned, this is a discretionary decision that is best left to the Board Member.  That being said, the Board has an obligation to deal with a request for an adjournment in a principled way.  The Board had an obligation to consider the factors enumerated in Rule 48(4), and could not legitimately deny the request solely because counsel had previously made a request which was refused.  While the Board Member did not explicitly say so, her reasons read as if she did not believe that counsel acted in good faith and that she was just coming up with another pretext to avoid proceeding on the scheduled date of the hearing.  On the basis of the record before the Court, and in the absence of any further explanations, the Board Member’s reasons for refusing to postpone the hearing are therefore unreasonable.

 

[39]           In and of itself, however, this is not sufficient to quash the decision.  As this Court stated in Javadi, above, at para 25:

The Court recalls that the power to grant a postponement request is within the Board’s discretion.  Pursuant to the Federal Court of Appeal’s decision in Vairamuthu v Canada (Minister of Employment and Immigration) (FCA), [1993] FCJ No 772, 42 ACWS(3d) 108, the Court may only criticize a Tribunal for having denied a request for adjournment if it is clear that a breach of natural justice or fairness has resulted from the decision.  When a Tribunal refuses an adjournment, the Court will thus analyze the circumstances specific to each case in order to determine if there was any breach of the principle of natural justice (Julien v Canada (Minister of Citizenship and Immigration), 2010 FC 351 at para 28, [2010] FCJ No 403).

 

[40]           In the case at bar, the Applicant argues that he was prevented from properly and fairly presenting his case and denied the opportunity of presenting submissions and being examined in a way that would have elucidated his claim.  The Applicant also argues that the principles of natural justice were breached when the Board Member failed to call Ms. Anaele’s cell phone to alert her to the fact that the request was refused and when the Board failed to immediately disclose the Board Member’s name in response to Ms. Anaele’s request.

 

[41]           It is trite law that the right to counsel is not absolute in the context of immigration proceedings.  The absence of counsel will only render a decision invalid when such an absence translates into a denial of a fair hearing: see, for ex., Wagg, above, at para 19; Mervilus v Canada (MCI), 2004 FC 1206 at paras 20-21; Julien, above, at paras 28-29; Guzun v Canada (MCI), 2011 FC 1324 at para 13; Vazquez v Canada (MCI), 2012 FC 385 at para 10; Tecuapetla v Canada (MCI), 2012 FC 225 at para 25.

 

[42]           Accordingly, it is incumbent upon the Applicant to show that he was denied a fair hearing as a consequence of the hearing proceeding in the absence of his counsel.  On that score, the Applicant utterly fails.  Counsel for the Applicant argued vaguely that she could have examined the Applicant, that she could have explored many issues, that she could at least have requested the opportunity to file written submissions after the hearing, but she did not provide any concrete examples of evidence or arguments that she could have put forward and that could have had an impact on the final result.  To the extent that the determinative issues in this case were the delay in claiming and the lack of evidence demonstrating the objective basis of the claim, it is indeed difficult to surmise what exactly counsel could have said or done to modify the outcome.

 

[43]           The onus was on the Applicant to demonstrate that the hearing was unfair as a result of proceeding without his counsel.  He has not discharged that burden.  A careful reading of the transcript shows that the Applicant was given an opportunity to correct the record at the beginning, and that the Board went over his affidavit and ascertained the bases of his claim.  There is no indication that he had any difficulty understanding the questions or providing the information requested. He was also given an opportunity to make submissions at the end.  There are, in short, no indicia that the hearing was anything but thorough and fair.  This is not to say that the Applicant would not have benefited from his counsel’s presence, but there is no evidence that he was prejudiced or that a line of argument or a piece of evidence was overlooked as a result of his lawyer not being present at the hearing.

 

[44]           Given that the sole issue raised by the Applicant is an alleged breach of procedural fairness arising from the RPD’s refusal to grant his request for a change of time and date of his refugee claim, resulting in his counsel not being able to attend his hearing, this application for judicial review must accordingly fail. 

 

 

JUDGMENT

 

THIS COURT’S JUDGMENT is that the application for judicial review is dismissed.  No question is certified.

 

 

"Yves de Montigny"

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

DOCKET:                                         IMM-4898-12

 

STYLE OF CAUSE:                        HOWARD SEYMOUR STEPHENS v THE MINISTER OF CITIZENSHIP AND IMMIGRATION

 

 

 

PLACE OF HEARING:                  Toronto, ON

 

DATE OF HEARING:                    March 13, 2013

 

REASONS FOR JUDGMENT

AND JUDGMENT:                         de MONTIGNY J.

 

DATED:                                            June 6, 2013

 

 

 

APPEARANCES:

 

Stella Iriah Anaele	FOR THE APPLICANT
Rafeena Rashid	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Stella Iriah Anaele Toronto, ON	FOR THE APPLICANT
William F. Pentney Deputy Attorney General of Canada Toronto, ON	FOR THE RESPONDENT