Federal Court Decisions

Date: 20060817

Docket: IMM-7225-05

Citation: 2006 FC 996

Quebec, Quebec, August 17, 2006

PRESENT:     THE HONOURABLE MR. JUSTICE BLAIS

 

BETWEEN:

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

 

Applicant

 

and

 

MARWAN MOHAMAD CHARABI

Respondent

 

 

REASONS FOR JUDGMENT AND JUDGMENT

 

 

 

[1]               This is an application for judicial review of an order setting aside a decision of Immigration and Appeal Board (IAD) member Robert Néron (the Board member), dated November 17, 2005 which cancelled the stay, quashed the deportation order and allowed Mr. Marwan Mohamad Charabi’s (the respondent) appeal.

 

 

FACTS

[2]               The respondent is a citizen from Syria. He came to Canada in 1987 and through the sponsorship of his brother became a permanent resident.

 

[3]               On February 23, 1996, he had been convicted on two counts of conspiracy and unlawful possession of manufactured tobacco for which he was sentenced to an imprisonment term of two years and two months.

 

[4]               A report under section 27 of the Immigration Act R.S.C. 1985, c. I-2 (the Act) was issued. An inquiry was held and a removal order was issued on March 9, 1999. The respondent appealed on the ground that, having regard to all circumstances of the case, he should not be removed from Canada. On August 11, 1999, Board member Paule Champoux Ohrt ordered the deportation order to be stayed for a period of three years, with conditions. On November 6, 2002, Board member Martine Lavoie reviewed the conditions of the stay granted to the respondent. The stay was extended one year by member Lavoie. 

 

[5]               On May 26, 2004, Board member Me Jean-Carle Hudon, found the respondent to be in breach of the conditions of the stay of the removal order made on March 9, 1999, which was stayed on August 11, 1999, and further reviewed and extended one year on November 6, 2002. The Board member found the respondent to be in breach of the conditions of his stay for failure to report charges laid against him on October 4, 2002.

 

[6]               On January 6, 2005, a Board member ordered that the stay shall be extended until May 2006 subject only to the mandatory conditions. The Board member also indicated that an interim reconsideration of the case would take place on or about November 1, 2005.

 

[7]               On November 15, 2005, Board member Robert Néron reviewed the respondent’s case in chambers. On November 17, 2005, the Board member cancelled the respondent’s stay, quashed the deportation order and allowed the appeal. 

 

ISSUE

[8]               Did the IAD breach the principles of natural justice for failing to provide the applicant with sufficient notice of the nature of the hearing before the Board member?

 

ANALYSIS

[9]               The appeal process at issue in the present matter is governed by section 74 of the Act and subsection 33(3) of the Immigration Appeal Division Rules SOR/93-46, which provide as follows.

 

[10]           Subsection 74(2) of the Act provides that the IAD, in granting a stay of a deportation order, may impose terms and conditions. Subsection 74(3) of the Act provides that the IAD may, at any time, amend the terms and conditions, impose new ones or cancel the stay. Subsection 33(3) of the Rules provides that where the IAD reviews a case of its own motion pursuant to subsection 74(2) the registrar shall notify the parties of the review 30 days before the date fixed for the review.

 

[11]           In the present matter the applicant relies on the decision of Justice Marc Nadon in Stocking v. Canada (Minister of Citizenship and Immigration) [1998] F.C.J. No. 993, to reinforce its claim that it did not receive proper notice of the nature of the hearing. In Ponnusamy v. Canada (Minister of Citizenship and Immigration [2000] F.C.J. No. 962, at paragraph 9, Justice W. Andrew MacKay comments on Justice Nadon’s decision in Stocking:

In Stocking, the Minister sought to have the terms of the appellant's stay amended. The Appeal Division gave notice to the appellant that an oral hearing would be held "in order to ascertain whether the terms of the stay have been complied with." There was no question in Stocking that the appellant had complied with all the terms set out in the stay of his deportation order. At the oral hearing, the Board of its own motion decided to review and cancel the appellant's stay and dismiss his appeal. Mr. Justice Nadon concluded, upon judicial review, that the Board could, if proper notice is given, examine the appellant's conduct and make such an order. In the circumstances where only notice of review of compliance had been given and compliance was proven, Nadon J. concluded that the decision to cancel the stay and dismiss the appeal could not stand.

 

[12]           In Stocking, above, the Minister sought to have the terms of the appellant’s stay amended and it was only at the hearing that the Board decided to review and cancel the appellant’s stay and dismiss his appeal. The IAD is entitled, under subsection 74(3) of the Act to review the applicant’s file to determine whether the stay should be continued, however, the applicant must receive adequate and reasonable notice of such a course of action. In Stocking, the applicant was not provided adequate and reasonable notice that the Board wished to review the original stay. As such, there was a breach of natural justice.

 

[13]           The question that needs to be answered in the present matter is whether or not the applicant received adequate or reasonable notice that the Board intended to review the stay. On May 16, 2005, the case management officer of the IAD sent a letter to the applicant’s representative and the respondent. She wrote the following:

In accordance with the order of the Immigration and Refugee Board, Appeal Division signed the 6^th day of January 2005, the execution of a removal order made against you was stayed.

 

This is to advise you that the Appeal Division will proceed with the interim reconsideration of this stay on or about the 1^st day of November 2005. Please advise the IAD of the opportunity of a review in chambers or a review by oral hearing by producing arguments and/or documents by or before the 1^st day of September 2005. Neither the appellant nor the respondent is required to attend this review.

 

However, the Appeal Division may decide that an oral hearing is necessary. In the event the Appeal Division decides there should be an oral hearing, you will be given at least 30 days notice in accordance with Rule 14(2) of the Immigration Appeal Division Rules.

 

You will be informed of the Appeal Division decision as soon as possible.

 

[14]           The situation in the Ponnusamy decision above resembles to a certain extent the present matter. Unlike the Stocking decision which dealt with a request on the part of the Minister to amend the terms of the stay, in Ponnusamy the review of the stay had already been set out in a schedule of periodic review. Justice MacKay, at paragraphs 10 and 12, said the following regarding the periodic review of the stay:

The decision to review the stay periodically was made when the stay was first entered and the Appeal Division set out a schedule of periodic reviews. I conclude that the applicant had sufficient notice that the oral hearing would concern itself with compliance with the terms of the stay of the deportation order. The applicant was served with a notice to appear. He had attended a number of these reviews in the past, and it is not conceivable that a reasonable person would not be aware of the purpose of the reviews. The applicant had notice, at least from the last extension of the stay in November, 1997, that the review was being held to consider whether he was in compliance with the conditions of the stay. In my opinion the Appeal Division acted within its authority under s-ss. 74(2) and (3) of the Act and in doing so it gave appropriate notice of the purpose of the review to be conducted.

 

…

 

The applicant received notice of the oral review. Further, he was the subject of a stay with a number of conditions that he was required to follow. This was a periodic review and continuing the stay depended upon compliance with the conditions. At the hearing, the Board member gave the applicant further notice of the gravity of the situation and offered him the opportunity to make further submissions. Finally, even if I were persuaded that the applicant was not aware of the potential consequences of the review hearing that would merely acknowledge his ignorance of the law, which is no basis for the Court to intervene where the Appeal Board acted within its authority under s. 74 of the Act.

 

[15]           The present matter dealt with a situation of periodic review. The letter sent to the parties on May 16, 2005, clearly stated that the Appeal Division would proceed with the interim reconsideration of the stay on or about November 1, 2005.

 

[16]           Nevertheless, I am not satisfied that the applicant has received a proper notice that the stay would be fundamentally reviewed and the cancellation of the stay would be contemplated.

 

[17]           I will refer to some doctrine and jurisprudence. Referring to Administrative Law, Third Edition, David J. Mullan cites at page 240, paragraph 111:

Adequate notice requires that the decision-maker supply persons who are entitled to notice with sufficient information on the nature of the proceedings and sufficient warning of the intention to make a decision as will enable them to prepare their proofs and arguments for presentation and to respond to the proofs and arguments anticipated from those maintaining a contrary position, and to appear and participate effectively at any oral hearings.¹ In proceedings where there are contesting parties, this obligation may extend as far as requiring that each side reveal to the other matters that it intends to put in issue at the hearing.²

 

[Notes omitted.]

 

[18]           Also, the Supreme Court of Canada in Confederation Broadcasting (Ottawa) Ltd. v. Canada (Canadian Radio-Television Commission), [1971] S.C.R. 906. held:

It is quite plain that the requirements of natural justice demand that a person have full and complete notice of the charges against him and an opportunity to reply thereto. It has been said in this Court in two recent decisions: Regina v. Quebec Labour Relations Board, ex parte Komo Construction Inc. [1968] S.C.R. 172, 1 D.L.R. (3d) 125] and Quebec Labour Relations Board v. Canadian Ingersoll Rand Co. Ltd. et al. [1998] S.C.R. 695, 1 D.L.R. (3d) 417], that the requirement of natural justice did not extend to demanding that a hearing policy be had. These cases cited by counsel for the respondent on the present appeal are not, in my opinion, important on the present issue because here there was a hearing but in both judgments it is said plainly that “each party be given the opportunity to put its arguments” (Komo case) and “what is required is that the parties be given the opportunity to put forward their arguments” (Canadian Ingersoll Rand case).

 

In the present case, the complaint is not that there was not a hearing but that the respondent failed to indicate in any fashion whatsoever what issue would be considered on that hearing.

 

[19]           In Stocking, above, Justice Nadon stated at paragraph 16:

The Appeal Division’s letter of August 21, 1997, which I reproduced in full earlier, does not constitute adequate or reasonable notice to the applicant. If the Appeal Division intended to review the applicant’s file to determine whether the stay should be continued, as it was entitled to under subsection 74(3) of the Act, it could and should have given the applicant notice of its intention to do so. What the applicant was informed of was that the Appeal Division would inquire whether he had complied with the terms of the stay. The evidence, as found by the presiding member, was that the applicant had complied with the terms imposed upon him. That, in my view, should have been sufficient to dispose of the issue before the Appeal Division on October 20, 1997. In the circumstances, I am therefore of the view that the rules of natural justice require that the decision of the Appeal Division be set aside. If the Board wishes to review the original stay it has the jurisdiction to do so, however, the rules of natural justice require that the applicant be notified of the Board’s intent and be given the opportunity to respond.

 

[20]           As was clearly mentioned by the applicant in his record, the IAD member did not notify the Minister that he intended to cancel the direction staying the execution of the respondent’s deportation order and to allow the respondent’s appeal. It is clear that the Minister’s representative was taken by surprise. He was not in a position to know the challenge he had to meet at the hearing. He was also denied the right to be heard before the IAD made its decision. I agree with the applicant that the failure to give proper notice in accordance with the IAD Rules requirements invalidates the decision.

 

[21]           The applicant is right when he suggests that the Minister was entitled to notice with sufficient information of the nature of the proceedings and sufficient warning of what were the intentions of the Board.

 

[22]           There is no doubt in my mind that if the IAD had the intention to cancel the respondent’s stay and allow his appeal, proper notice of its intention should be given to the applicant. The failure to do so constitutes a breach of the principles of natural justice.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

1. This application for judicial review is granted;
2. The decision of the Immigration and Appeal Board is set aside and the matter is returned to the Board to be reconsidered by a panel differently constituted;
3. No question for certification.

 

 

 

 

 

 

 

 

FEDERAL COURT

 

NAME OF COUNSEL AND SOLICITORS OF RECORD

 

 

DOCKET:                                          IMM-7225-05

 

STYLE OF CAUSE:                          MCI v. MARWAN MOHAMAD CHARABI

 

PLACE OF HEARING:                    Montreal, Quebec

 

DATE OF HEARING:                      June 29, 2006

 

REASONS FOR JUDGMENT AND JUDGMENT:          BLAIS J.

 

DATED:                                             August 17, 2006

 

 

APPEARANCES:

 

Mr. Michel Pépin	FOR THE APPLICANT
Mr. Jean-François Bertrand	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

John H. Sims, Q.C. Deputy Attorney General of Canada Fax No. (514)496-7876	FOR THE APPLICANT
Mr. Jean-François Bertrand Montreal, Quebec Fax No. (514)842-8055	FOR THE RESPONDENT