Federal Court Decisions

 

Date: 20070517

Docket: IMM-3150-06

Citation: 2007 FC 531

Ottawa, Ontario, May17, 2007

PRESENT:     The Honourable Mr. Justice Barnes

 

 

BETWEEN:

PEIHUA WANG

Applicant(s)

and

 

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

 

Respondent(s)

 

REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               This is an application for judicial review brought by the Applicant, Peihua Wang, from a decision of the Refugee Protection Division of the Immigration and Refugee Board rendered at Toronto on May 17, 2006.  Ms. Wang has challenged that decision on several grounds but, in the circumstances, I need only deal with one of them, that being the fairness of the hearing. 

 

Background

[2]               Ms. Wang came to Canada from China in 2005 and alleged that, as an ardent practitioner of Falun Gong, she would face the risk of persecution if she was required to return home. 

 

[3]               Ms. Wang alleged that she had practised Falun Gong since 1996.  After the Chinese authorities cracked down on the movement in 1999, she maintained her practice but not as openly as before.  Nevertheless, she continued to promote Falun Gong to others including those at her workplace.  This, she said, caused problems for her with her employer and led to her resignation. 

 

[4]               In 2005, Ms. Wang entered Canada with a visitor’s visa for the purpose of attending her daughter’s wedding and graduation.  Within three (3) days of arriving in Ontario, Ms. Wang joined a Falun Gong practice group and became active in the Canadian movement.  This included her participation in weekly public gatherings at the Chinese Consulate.  It was on the basis of this prior history that Ms. Wang made her claim to refugee protection. 

 

The Board Decision

[5]               The Board rejected Ms. Wang’s claim on the basis of a number of findings of inconsistency and implausibility related primarily to her alleged history of Falun Gong activity in China.  The Board accepted that she was a Falun Gong practitioner in China albeit not to the extent she had claimed.  The Board also accepted that she had been active with Falun Gong in Canada but it found that conduct to be “opportunistic”. 

 

[6]               For the purposes of this decision, it is unnecessary to comment on the reasonableness of the Board’s evidentiary findings beyond observing that Ms. Wang was not questioned on all of the points that later troubled the Board.  Certainly, it is good practice to afford a claimant the opportunity to respond to the Board’s plausibility concerns before making adverse findings.

 

[7]               The determinative issue in this case concerns the Board’s refusal to hear a proposed expert witness for Ms. Wang, namely Jason Loftus from the Falun Dafa Association of Canada.  In previous cases before the Board, Mr. Loftus had been permitted to testify about the risks facing Falun Gong practitioners and their families in China and about the particular vulnerabilities of affected refugee claimants. 

 

[8]               The record discloses that an outline of Mr. Loftus’ views and his curriculum vitae were filed with the Board well in advance of the hearing, albeit that formal notice of the intention to call him as a witness was not given as required by Rule 38 of the Refugee Protection Division Rules (Rules), S.O.R./2002-228.  The basis for the Board’s decision to refuse to hear testimony from Mr. Loftus is contained within the following transcript passages:

COUNSEL:                             Yes.  So, C-1 is the proposed Personal Information Form.  C-2 we propose, with your leave, Mr. Chair, that it be a package that was sent – that was received by the Board on January 30^th, 2006.  It basically includes pages one to 24 of the package.  The background résumés of different witnesses that we have from the Falun Dafa Association.  We never know, as we have discussed this issue in the past, Mr. Chair, we never know until the day of the hearing which of the three representatives are going to be before the Board.  So, you have the résumés of all of them, including I think for today’s purposes, at pages two to ---

 

PRESIDING MEMBER:          All right.  Counsel, stop.  Just stop.  Stop.  One of the requirements of any refugee hearing is that if witnesses are to appear, the Board must be notified at least 20 days before the hearing, and if as you say, you are not able to tell which one is going to appear.  Yes, fine, you can do this, but it must be done in a timely manner.  Also, you should include the area of testimony that will be given by the witness.  I see nothing in my file to indicate that the Board was informed that any witness will be appearing.  Did you send any such information, Counsel?

 

COUNSEL:                             What we sent, and what is accepted by all your colleagues, is the résumés and the background information of all the witnesses.  Mr. Loftus’ document is in C-2, Mr. Chair.

 

PRESIDING MEMBER:          Counsel, I am not – Counsel, please.  Please.  Don’t believe by continuous talking you are going to get me off track.  Just listen, please.  Do you know something that I really don’t like, is Counsels to tell me what my colleagues do.  That has nothing to do with me.  The rules clearly state that if a witness is to appear, the Board is to be notified 20 days in advance.  That has not been done.

 

 

After hearing testimony from Ms. Wang, her counsel again raised the issue of hearing evidence from Mr. Loftus in the following passage:

PRESIDING MEMBER:          Okay.  Counsel, are you ready with you submissions?

 

COUNSEL:                             Mr. Chair, can I have Mr. Loftus say a couple of words?

 

PRESIDING MEMBER:          What is that?

 

COUNSEL:                             Can I have Mr. Loftus say a couple of words?

 

PRESIDING MEMBER:          No.  No.  No. 

 

COUNSEL:                             No?

 

PRESIDING MEMBER:          No.

 

[Quoted from original text]

 

 

It is from this ruling that Ms. Wang seeks relief in the form of a new hearing of her claim to protection.

 

Issues

[9]               (a)        What is the appropriate standard of review?

(b)       Did the Board err by refusing to hear expert testimony on behalf of Ms. Wang?

 

Analysis

[10]           The determinative issue raised on this application is one of procedural fairness and, as such, does not engage a functional and pragmatic assessment.  The applicable standard for review is correctness:  see Benitez v. Canada (Minister of Citizenship and Immigration), [2006] FCJ No. 631, 2006 FC 461 at para. 44. 

 

[11]           The question that must be resolved on this application is whether the Board was correct in refusing to allow Mr. Loftus to testify on behalf of Ms. Wang on the basis of the failure to strictly fulfil the requirements of Rule 38 which provides:

 

[12]           The Board may, of course, excuse a party from compliance with any of its Rules and it has the discretion to extend or shorten any time limits:  see Rule 69. 

 

[13]           One of the fundamental elements of a refugee claimant’s right to a fair hearing is the opportunity to present evidence to the Board.  This point is recognized in Singh v. Canada (Minister of Employment and Immigration), [1985] 1 S.C.R. 177, [1985] S.C.J. No. 11, where Justice Bertha Wilson observed at para. 57: 

57     All counsel were agreed that at a minimum the concept of "fundamental justice" as it appears in s. 7 of the Charter includes the notion of procedural fairness articulated by Fauteux C.J. in Duke v. The Queen, [1972] S.C.R. 917. At page 923 he said:

 

Under s. 2(e) of the Bill of Rights no law of Canada shall be construed or applied so as to deprive him of "a fair hearing in accordance with the principles of fundamental justice". Without attempting to formulate any final definition of those words, I would take them to mean, generally, that the tribunal which adjudicates upon his rights must act fairly, in good faith, without bias and in a judicial temper, and must give to him the opportunity adequately to state his case.

 

[Emphasis added]

 

 

[14]           The importance of the right to call evidence in the administrative law context was also recognized by the Federal Court of Appeal in Timpauer v. Air Canada and Canada Labour Relations Board, [1985] F.C.J. No. 184, [1986] 1 F.C. 453 (C.A.), where Justice Arthur Stone stated at para. 17:

17     In concluding that natural justice was denied, I am mindful of the fundamental importance in the interest of a fair inquiry that a tribunal afford a party the opportunity of calling his witnesses and of otherwise making his case before disposing of the matter one way or the other...

 

 

[15]           The right to make one’s case is, of course, subject to reasonable limitations including those established by Rule 38.  Nevertheless, it is well understood that the exercise of discretion by a decision-maker to refuse to hear evidence on behalf of an interested party must be carried out in a principled way even where a party has not observed a non-mandatory procedural prerequisite.  These points are duly noted by David J. Mullan in his text Administrative Law (Toronto: Irwin Law, 2001), where, at page 291, he discussed the elements of proper decision-making in this context of procedural fairness:

Administrative tribunals and agencies have control over the conduct of their proceedings and this includes the ability to place limits on the right of parties to adduce evidence and to make submissions in support of their position.  Without such authority, decision makers would be in the thrall of anyone anxious to disrupt the timely operation of the administrative process.  Nonetheless, the exercise of these powers is conditioned by a number of considerations.  Generally, it will depend on an appropriate judgment by a tribunal that further evidence or submissions should not be permitted on the basis of inadmissibility, irrelevance, or repetition.  An erroneous assessment on any of these bases can lead to a reviewable denial of procedural fairness. 

 

Far more controversial, however, is the extent of the entitlement of tribunals to limit participatory rights simply by reference to considerations of efficiency and the need for the expeditious carrying out of the statutory mandate.  Indeed, even in the common situation where the relevant legislation provides that a tribunal is to proceed expeditiously, courts have been reluctant to allow this a basis for denying the right to call witnesses who may add something of relevance to the matter under consideration.  There is also precedent condemning a policy of confining hearings to a set length at least when it can be established that rigid adherence to the policy in the particular case would potentially affect the normal natural justice entitlements of a participant.

 

[Emphasis added]

 

 

[16]           Here, the Board had the discretion to hear Mr. Loftus’ evidence notwithstanding the failure to fulfill the conditions of Rule 38 and it had a corresponding obligation to consider doing so on the basis of relevant factors.

 

[17]           It is obvious that the Board in this case failed to exercise its discretion judicially because it failed to take account of a number of important considerations required for the proper exercise of that discretion.  Those considerations could include the assessment of the potential importance or relevance of the proposed evidence to the matters in issue, the extent to which the requirements of the Rule had been met, the adverse effects, if any, on the efficiency of the hearing, any resulting prejudice to the Board or other involved parties along with the possibility that such prejudice might be mitigated by means other than a refusal to receive the evidence. 

 

[18]           In this case, Mr. Loftus had been identified in the documentary record.  A general outline of what he could offer as a witness was also provided to the Board more than twenty (20) days in advance of the hearing.  His intended evidence was directly related to one of the determinative issues in the case.  All that was missing was a clear indication that Ms. Wang intended to call him as a witness.  Nevertheless, the Board asked no questions to determine the significance of Mr. Loftus’ evidence or to discern the reasons for the failure to strictly comply with Rule 38.  Instead the Board treated that technical non-compliance as the sole basis for its decision to refuse to hear Mr. Loftus.

 

[19]           While there is certainly value in maintaining a degree of efficiency around the Board’s evidence-gathering functions, that consideration alone does not trump the fundamental obligation to afford to a refugee claimant the fair opportunity to call evidence.  Indeed, as was noted in Singh, above, at para. 70, administrative efficiency, in this context, cannot be achieved at the expense of fairness and due process: 

Seen in this light I have considerable doubt that the type of utilitarian consideration brought forward by Mr. Bowie can constitute a justification for a limitation on the rights set out in the Charter. Certainly the guarantees of the Charter would be illusory if they could be ignored because it was administratively convenient to do so. No doubt considerable time and money can be saved by adopting administrative procedures which ignore the principles of fundamental justice but such an argument, in my view, misses the point of the exercise under s. 1. The principles of natural justice and procedural fairness which have long been espoused by our courts, and the constitutional entrenchment of the principles of fundamental justice in s. 7, implicitly recognize that a balance of administrative convenience does not override the need to adhere to these principles. Whatever standard of review eventually emerges under s. 1, it seems to me that the basis of the justification for the limitation of rights under s. 7 must be more compelling than any advanced in these appeals.

 

 

Conclusion

[20]           The Board’s handling of this issue breached the duty of fairness owed to Ms. Wang and the matter must be remitted to a differently constituted panel of the Board for redetermination on the merits. 

 

[21]           The Respondent declined to propose a question for certification and no issue of general importance arises on this record.   

 

JUDGMENT

 

            THIS COURT ADJUDGES that this application for judicial review is allowed with the matter to be remitted to a differently constituted panel of the Board for redetermination on the merits. 

 

 

 

"R. L. Barnes"

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          IMM-3150-06

 

STYLE OF CAUSE:                          Peihua Wang

                                                            v.

                                                            The Minister of Citizenship and Immigration

 

 

 

PLACE OF HEARING:                    Toronto, Ontario

 

DATE OF HEARING:                      2-MAY-2007

 

REASONS FOR JUDGMENT

AND JUDGMENT BY:                    BARNES J.

 

DATED:                                             May 17, 2007

 

 

 

APPEARANCES:

 

Joel Etienne	FOR THE APPLICANT(S)
Matina Karvellas	FOR THE RESPONDENT(S)

 

SOLICITORS OF RECORD:

 

Joel Etienne Barrister & Solicitor Toronto, Ontario	FOR THE APPLICANT(S)
John H. Sims, Q.C. Deputy Attorney General of Canada	FOR THE RESPONDENT(S)