Johnpillai v. Canada ( Secretary of State )
IMM-3651-94
Reed J.
31/1/95
7 pp.
Judicial review of CRDD decision -- Applicant alleging breach of natural justice as panel members read prejudicial notes reporting applicant's statements, conduct when first entered Canada before commencement of hearing -- Also arguing finding of lack of credibility based on minor matters not connected to essence of applicant's claim -- Breach of natural justice argument based on Training Manual for Refugee Hearing Officers and Khakh v. Canada (Minister of Employment and Immigration, [1994] 1 F.C. 548 (T.D.) -- Manual providing potentially damaging material should be entered as evidence on date of hearing unless counsel or claimant consenting to prior filing -- Fact prejudicial notes pre-filed, read by panel members expressly brought to "counsel's" attention at hearing -- Applicant's representative assistant from law firm -- Khakh holding no waiver of right to object to hearing before panel based on apprehension of bias -- Applicant arguing decision based on fact applicant's representative not legally trained -- Application dismissed -- Direction in Training Manual included to avoid unnecessary adjournments, not because absolute requirement flowing from rules of natural justice prejudicial material not be pre-filed -- Prior consent given to material being pre-filed, made part of record -- Also express waiver of right to object to pre-filing of prejudicial material given at hearing -- Consent having been given, not now credible to argue breach of natural justice -- Reasonable to assume assistant at law firm discussed case with someone at firm who had legal training -- Applicants before many tribunals, including refugee hearing tribunals, having choice as to whether self-represented, represented by legal counsel, or non-legally trained representative -- Khakh not setting out rule claimant who chooses non-legally trained representative or who appears for himself in more advantageous position when it comes to asserting no waiver occurred in course of hearing than person who elects to be represented by counsel -- Individuals appearing before courts or tribunals who choose not to be legally represented, generally expected to know law -- May be circumstances when lack of such knowledge leading to finding insufficient awareness of right so as to vitiate implied waiver -- Court not prepared to assume applicant's representative unaware of requirement objections based on alleged lack of natural justice must be made expeditiously because lacked formal credentials of barrister, solicitor -- Also consented to pre-filing -- While some aspects fall within insignificant category, cumulative effect of inconsistencies supporting Board's decision as to credibility.