Date: 20041013
Docket: IMM-5408-03
Citation: 2004 FC 1407
Toronto, Ontario, October 13th, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
MOHSEN ABASALIZADEH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Mohsen Abasalizadeh had been waiting for three years for his claim for refugee protection to be heard at Halifax. He retained the services of a Halifax lawyer, Lee Cohen, in October 2002, and expected that Mr. Cohen would appear with him at the scheduled hearing. On that date, June 3, 2003, Mr. Cohen withdrew his services. After an adjournment of just two days, the Refugee Protection Division of the Immigration and Refugee Board (the "Board") proceeded to hear and refuse Mr. Abasalizadeh's claim.
[2] The applicant seeks judicial review of the Board's decision on the grounds that he was denied natural justice and procedural fairness. I have concluded that natural justice was lacking in the Board's proceedings and will grant the application.
[3] Mr. Abasalizadeh, a native of Iran, arrived in Canada at Toronto on October 8, 2000. He initiated his claim a few months later in Halifax, where he was staying with a cousin. He then moved to Toronto. He was informed that his claim file could not follow him to Toronto and the hearing would have to take place in Halifax. Thus, he retained Mr. Cohen's services as a Halifax-based lawyer.
[4] On the date of the hearing, June 3, 2003, Mr. Cohen met Mr. Abasalizadeh outside the Immigration and Refugee Board offices in Halifax and advised the applicant that he could not act for him. Mr. Cohen then sought a "pre-hearing" in which he advised the presiding member of the Refugee Protection Division that he had a "philosophical difference" with the applicant on how to present certain aspects of his claim. He acknowledged that this could lead to an inference regarding the credibility of the claim. Mr. Cohen suggested that the applicant would want to proceed with the hearing but also would want to retain new counsel and for that purpose would want an adjournment. The presiding Board member allowed him to withdraw as counsel after making a comment as to how she appreciated his "frankness" and knew his "commitment"; to what was not clear.
[5] After a short break, Mr. Abasalizadeh attended in the hearing room. He was asked if he wanted a new lawyer or if he was ready to proceed. There was some discussion of the claim being transferred to Ottawa or Toronto, but Mr. Abasalizadeh did not want to transfer to Ottawa and the Member confirmed that it was not possible to transfer to Toronto. She offered him 24 hours to find a lawyer if he wanted one. At that point, Mr. Abasalizadeh opted to have the hearing immediately.
[6] However, once the hearing began, it became clear that Mr. Abasalizadeh had not received the disclosure package, as it had been sent to his lawyer instead. The Member decided to adjourn until June 5th to allow Mr. Abasalizadeh to go over the documents with a relative to assist with translation, and, as an afterthought, to retain a lawyer if he wanted one. If he was able to retain a lawyer, he could ask for an adjournment; if he did not, the hearing would proceed.
[7] Mr. Abasalizadeh attempted to find a lawyer, but was unsuccessful. He felt he had no option but to proceed on June 5th. At the hearing, he represented himself.
The Board's Decision
[8] The RPD found that Mr. Abasalizadeh had not presented sufficient credible evidence to establish the subjective element of his claim, and that his failure to claim in one of the three countries through which he passed in coming to Canada also worked against him. The Member also found that he did not fit the profile of a person of interest to the Iranian authorities.
ISSUES
[9] Were the applicant's natural justice rights violated either:
1. by the decision to proceed without counsel for the applicant?
2. by the decision to proceed within 48 hours of disclosure of the information package to the applicant?
ANALYSIS
1. Proceeding without counsel
[10] The applicant submits that he was effectively denied counsel by the Board requiring him to find a lawyer in less than two days, given that he had understood, until that morning, that he would have legal representation. Incompetent counsel may be a breach of natural justice, so the effective denial of counsel should be as well: Sheikh v. Canada (Minister of Employment and Immigration) (1990), 11 Imm. L.R. (2d) 81 (F.C.A.).
[11] The respondent submits that Mr. Abasalizadeh was given an opportunity to solve his counsel problems by having his claim transferred to Ottawa, but chose to proceed in Halifax. In light of this, he cannot now argue that there has been a breach of natural justice. The Board's decision rested on a lack of credibility, not a lack of counsel.
[12] While it is correct that the Board's decision turned on its findings with respect to the applicant's credibility, the manner in which Mr. Cohen chose to withdraw from the proceedings may have prejudiced his former client's case. One inference that could have been drawn by the presiding member is that counsel lacked confidence in the veracity of the applicant's claim. Her remarks in permitting him to withdraw could be interpreted as indicating the thought crossed her mind. At the very least, the appearance of fairness may have been affected.
[13] The question of what a tribunal should do when counsel withdraws during a hearing was addressed by Justice Rothstein in Acquah v. Canada (Minister of Employment and Immigration)(1994), 83 F.T.R. 68 (T.D.). He refers to Siloch v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 10, a decision of Décary J.A. for the Court of Appeal which outlines factors to be taken into consideration in determining an adjournment request and cites examples of cases in which adjournments were improperly denied.
[14] In Acquah, counsel abandoned the applicant mid-way through the proceedings because she was unable to pay him. The tribunal was aware that the applicant was attempting to obtain legal aid funding to continue her representation. In those circumstances, despite the absence of an express request for an adjournment, Justice Rothstein found that an adjournment should have been granted to allow the applicant time to pursue her funding application.
[15] In the present matter, it is unclear whether there was any further discussion of the possibility of adjourning the matter on June 5th . The transcript contains no preliminaries, and simply begins with the hearing, without a lawyer. This is similar to the situation described in Acquah, supra at paragraph 14:
When counsel is present, I would not think that a tribunal would have to be on the lookout for implied adjournment requests or other implied applications of any sort. But in the absence of counsel, a tribunal must be mindful that a lay person may not know the procedures that lawyers take for granted. A tribunal is not obliged to guess at what a party is seeking nor is it required to react to vague statements or indications from a party. But, tribunals must not ignore clear signals from lay persons that, while they may not be couched in normal legal terminology, nevertheless, necessarily imply a specific request.
[16] In the present matter, the Board, in my view, did not give adequate consideration to the situation in which Mr. Abasalizadeh found himself. He had been waiting for his hearing for a prolonged period of time. His lawyer had withdrawn without notice in circumstances that may have prejudiced a fair hearing. He had travelled to Halifax at significant expense and was concerned about the costs of another trip. It was unlikely that any lawyer could be found in Halifax who would be willing to appear on such short notice. In these circumstances, the Board should have considered whether it could fairly proceed with the hearing.
2. Late disclosure
[17] Some 116 pages of documents were provided to the applicant on June 3rd. Rule 29 of the Refugee Protection Division Rules requires that documents be provided to a party no later than 20 days, or in the case of responsive documents, five days before the hearing. Both the Division and the applicant are bound by this rule. Mr. Abasalizadeh submits that proceeding with his hearing only two days after documents were disclosed breached his rights to procedural fairness.
[18] The respondent submits that Rule 29 was not violated because materials were sent to the claimant's counsel, as permitted by Rule 32(3). There was no requirement, unless he had no counsel, for the materials to be sent directly to the claimant. However, even if there was a breach of natural justice in the particular circumstances of this case, if it is apparent that the decision-maker would have reached the same decision notwithstanding the breach, the decision should stand, citing among many authorities: Yassine v. Canada (Minister of Citizenship and Immigration) (1994), 172 N.R. 308 at paras. 9-11; Patel v. Canada (Minister of Citizenship and Immigration), 2002 FCA 55 at para. 5.
[19] The applicant argues that his case is not hopeless, nor is it one in which no purpose would be served in remitting it for consideration: Yassine, supra ; Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202.
[20] At page 424 of the certified tribunal record, the Presiding Member states, in answer to the Refugee Protection Officer's concerns about proceeding: "He hasn't had proper disclosure." She continues:
Because you haven't had proper disclosure, you haven't had enough time to know the case you have to meet, we are going to give you these documents now and we will ask you to come back at maybe a quarter to 9:00 on Thursday morning, and at that time, you can tell me if you have engaged a lawyer and if you want to postpone your hearing until your lawyer can come with you, or if you still want to come on Thursday without a lawyer and tell your story and answer what is in the documents, we can do it on Thursday.
[21] It is evident that the Board was concerned that the applicant had been given inadequate disclosure but thought that two days would be sufficient for him to read and digest the material and be prepared to address it. The documents were in English and the applicant required an interpreter to testify. His former lawyer had noted he had difficulty communicating with Mr. Abasalizadeh without an interpreter.
[22] Rule 30 provides that the Board may allow the use of a document which has not been disclosed in accordance with Rule 29, upon consideration of several mandatory factors. There is no indication on the record that the Board conducted any analysis of these factors. In my view, if a document is to be used without giving adequate time to examine it, some accomodation must be afforded the affected party, such as limiting the amount of material that will be taken into consideration.
[23] The disclosure issue may not in itself amount to a breach of natural justice or procedural fairness. However, when coupled with the absence of counsel in these particular circumstances, I am satisfied that the cumulative effect amounted to at least the appearance of unfairness.
[24] I am not persuaded by the respondent's argument that the demerits of the claim are such that the outcome was "inevitable". The authorities indicate that where natural justice or procedural fairness has been denied, a remedy may be withheld where the decision maker would have been bound in law to reject the application on the evidence before her. This operates as an exception to the general rule that normally requires a new hearing. In this instance, the decision turned on the Board's credibility findings. Another tribunal, without the possible influence of counsel's withdrawal for "philosophical" reasons, might arrive at a different determination.
[25] The parties proposed no serious question of general importance for certification.
ORDER
THIS COURT ORDERS that the application is granted and the matter is remitted for a new hearing and redetermination. No question is certified.
"Richard G. Mosley"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5408-03
STYLE OF CAUSE: MOHSEN ABASALIZADEH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 12, 2004
REASONS FOR ORDER
AND ORDER BY: MOSLEY J.
DATED: OCTOBER 13, 2004
APPEARANCES BY:
Ms. Wennie Lee FOR THE APPLICANT
Mr. John Loncar FOR THE RESPONDENT
SOLICITORS OF RECORD:
Wennie Lee
Toronto, Ontario FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT
FEDERAL COURT
Date: 20041013
Docket: IMM-5408-03
BETWEEN:
MOHSEN ABASALIZADEH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER