A-200-96
The Minister of Citizenship and Immigration (Appellant) (Respondent)
v.
Ricki Narash Harricharan Singh (Respondent) (Applicant)
Indexed as: Singhv. Canada (Minister of Citizenship and Immigration) (C.A.)
Court of Appeal, Stone, Linden and McDonald JJ.A. "Toronto, February 5; Ottawa, February 23, 1998.
Citizenship and Immigration — Immigration practice — Appeal from F.C.T.D. order setting aside I.R.B., Refugee Division decision respondent not Convention refugee — Decision signed by only one of two Board members hearing matter — Stating other member ceased to hold office — S. 69.1(7) conferring right to decision by two-member panel of Board — S. 63 indicating right can be abridged in event one of board members resigned, ceased to hold office, died, or unable to participate in decision — S. 69.1(10) granting claimants benefit of disagreement between Board members — That not taking part in disposition indicating —unable— to do so — Statute not requiring explanation for why decision not rendered by both members during extension, but F.C.A. decision in Weerasinge v. Canada (M.E.I.) requiring remaining Board member to place on record complete statement of material circumstances giving rise to invocation of s. 63(2) — Intended to inform claimants why lost advantage conferred by s. 69.1(10) — Bald statement departed member participated in disposition in accordance with s. 63(1) not satisfying Weerasinge as not indicating why two-member panel could not render decision before expiry of 8-week extension — Statement reasons reflecting thinking of panel when decision made ambiguous as not revealing when decision made — S. 69.1(10) requiring absolute certainty as to views of each Board member.
This was an appeal from a Trial Division order setting aside an Immigration and Refugee Board, Refugee Division decision that was signed by one member only of the two-member panel. The claim for refugee status was heard by Board members Berman and Guthrie on June 22, 1994 and the decision that the respondent was not a Convention refugee was rendered on April 7, 1995 by Berman alone. The decision stated that Guthrie had ceased to hold office on December 27, 1994, and that he had participated in the disposition of the claim in accordance with Immigration Act, subsection 63(1). That subsection permits a person, at the request of the Chairperson, within eight weeks after resigning or ceasing to hold office as a member of the Refugee Division, to take part in the disposition of any matter previously heard by that person. Subsection 63(2) provides that where a person to whom subsection 63(1) applies is unable to take part in the disposition thereof or has died, the remaining members who heard the matter may make the disposition. Subsection 69.1(7) requires that a claim be heard by a quorum of two Board members. Subsection 69.1(10) provides that a claim for Convention refugee status must be granted in the event of a split decision, unless the matter is governed by subsection 69.1(10.1). The reasons also stated that they reflected the thinking of the panel when the decision was made. The Trial Judge quashed the Board's decision on the ground that there was no evidence that the other Board member was "unable", in the sense of prevented by circumstances beyond his control, to take part in the decision and because the explanation given for one person alone signing the decision was at best ambiguous. The following question was certified: is the expiration of a Board member's term a sufficient ground to invoke Immigration Act , subsection 63(2)?
Held, the answer to the certified question was that the expiration of a Board member's term is a sufficient ground to invoke subsection 63(2) but the appeal should be dismissed on the ground that the member who signed the decision failed to provide a complete statement of the material circumstances in accordance with this Court's decision in Weerasinge v. Canada (Minister of Employment and Immigration).
Section 63 indicates that the statutory right to a decision by a two-member panel of the Board is not absolute, and that it can be abridged in the event that one of the Board members has resigned or otherwise ceased to hold office, died or was unable to participate in the decision. Subsection 63(2) recognizes that during the eight-week period of extension, the Board member might not be in a position to participate in the disposition of a matter. The very fact that a person has not taken part in the disposition of the matter after the expiry of such extension indicates that he or she was "unable" to do so. The departed Board member will have lost the required authority. The statute itself does not require that any explanation be given. However, case law requires that a sufficient explanation be provided by the member who disposes of the matter on behalf of the Board by signing it alone. The explanation must be one that is contemplated by section 63.
According to the Weerasinge principle, in order to "ensure" that "justice is seen to have been done", the remaining Board member must place on the record a "complete statement of the material circumstances" giving rise to the invocation of subsection 63(2). Such a statement is intended to inform claimants of why they have lost the advantage secured to them by subsection 69.1(10).
Board member Berman's bald statement that the departed member "participated in the disposition of the claim in accordance with section 63(1)" did not satisfy the Weerasinge principle. That statement shed no light on the circumstances that prevented the two-member panel from rendering a decision before the expiry of the eight-week period of extension. The statement that the "present reasons reflect the thinking of the panel when the decision was made" did not reveal when the decision was made. The explanation was at best ambiguous. A more detailed explanation of the material circumstances giving rise to the departed member's inability to participate in the disposition of the matter within the extension period was required to satisfy the Weerasinge principle.
Subsection 69.1(10) heightens the need to be absolutely certain of the views of each Board member. Nothing in the record documented Board member Guthrie's views before he left the Board. As a practical reality of decision making, "decisions often change with the writing of reasons". Requiring that each member of the panel indicate his or her agreement or disagreement with the final decision by signing ensures that the decision accurately reflects the opinions of each person who participated in it. Section 63 constitutes an exception to this requirement in the circumstances in which it applies to a Board member who does not sign.
statutes and regulations judicially considered
Immigration Act, R.S.C., 1985, c. I-2, ss. 61(5) (enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 50), 63(1) (as am. idem, s. 52), (2) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18), 69.1(7) (as enacted idem), (8) (as enacted idem; S.C. 1992, c. 49, s. 60), (9) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 60), (10) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 60), (10.1) (as enacted idem), (11) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 60), 83(1) (as am. idem, s. 73).
cases judicially considered
applied:
Weerasinge v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 330; 17 Admin. L.R. (2d) 214; 22 Imm. L.R. (2d) 1; 161 N.R. 200 (C.A.).
considered:
Mehael v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 838 (T.D.) (QL); Odameh v. Minister of Employment and Immigration (1985), 185 N.R. 9 (F.C.A.); Brailko v. Canada (Minister of Citizenship and Immigration) (1995), 97 F.T.R. 129 (F.C.T.D.); IBM Canada Ltd. v. Deputy M.N.R., Customs and Excise, [1992] 1 F.C. 663; (1991), 129 N.R. 369; 4 T.C.T. 6356; 7 T.T.R. 285 (C.A.).
referred to:
Latif v. Canada (Minister of Citizenship & Immigration) (1996), 45 Admin. L.R. (2d) 254; 123 F.T.R. 201; 36 Imm. L. R. (2d) 182 (F.C.T.D.); Ashraf v. Canada (Minister of Citizenship and Immigration) (1996), 107 F.T.R. 289 (F.C.T.D.); De Arce v. Canada (Minister of Citizenship and Immigration) (1995), 103 F.T.R. 72; 32 Imm. L.R. (2d) 74 (F.C.T.D.); Eryilmazli v. Canada (Minister of Citizenship and Immigration) (1997), 131 F.T.R. 22 (F.C.T.D.); Garrison v. Canada (Minister of Citizenship and Immigration) (1995), 90 F.T.R. 61; 28 Imm. L.R. (2d) 113 (F.C.T.D.); Kutovsky-Kovaliov et al. v. Canada (Secretary of State) (1995), 93 F.T.R. 293 (F.C.T.D.); Mirzaei v. Canada (Minister of Citizenship & Immigration) (1995), 32 Imm. L.R. (2d) 69 (F.C.T.D.); Mohammed v. Canada (Minister of Citizenship and Immigration) (1997), 136 F.T.R. 253 (F.C.T.D.); Quintero v. Canada (Minister of Citizenship and Immigration) (1995), 90 F.T.R. 251 (F.C.T.D.); Sereguine v. Canada (Minister of Citizenship and Immigration) (1996), 108 F.T.R. 133 (F.C.T.D.); Sinishin v. Canada (Minister of Citizenship and Immigration) (1995), 96 F.T.R. 8 (F.C.T.D.); Sommariva v. Canada (Minister of Citizenship and Immigration) (1996), 110 F.T.R. 319; 33 Imm. L.R. (2d) 25 (F.C.T.D.); Soukhaniouk et al. v. Minister of Employment and Immigration (1994), 85 F.T.R. 55 (F.C.T.D.); Tirawi v. Canada (Minister of Citizenship and Immigration) (1997), 136 F.T.R. 235 (F.C.T.D.); Vega-Solis v. Canada (Minister of Citizenship and Immigration) (1995), 93 F.T.R. 211 (F.C.T.D.); Zivkovic v. Minister of Employment and Immigration (1994), 88 F.T.R. 192 (F.C.T.D.); Malouf v. Canada (Minister of Citizenship and Immigration) (1995), 190 N.R. 230 (F.C.A.); Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4 (F.C.A.).
authors cited
Black's Law Dictionary, rev. 4th ed. St. Paul, Minn.: West Publishing, 1968. "render".
APPEAL from a Trial Division order setting aside a decision of the Refugee Division of the Immigration and Refugee Board that was signed by one member only of the two-member panel (Singh (Ricki) v. Canada (Minister of Citizenship and Immigration) (1995), 104 F.T.R. 312 (F.C.T.D.)). Appeal dismissed on the ground that the member who signed the decision failed to provide a complete statement of the material circumstances in accordance with Weerasinge v. Canada (Minister of Employment and Immigration).
counsel:
Kevin Lunney for appellant (respondent).
Michael E. Korman for respondent (applicant).
solicitors:
Deputy Attorney General of Canada for appellant (respondent).
Otis & Korman, Toronto, for respondent (applicant).
The following are the reasons for judgment rendered in English by
Stone J.A.: This is an appeal from an order of the Trial Division [Singh (Ricki) v. Canada (Minister of Citizenship and Immigration) (1995), 104 F.T.R. 312] by which a decision of the Refugee Division of the Immigration and Refugee Board that was signed by one member only of the two-member panel was set aside. That decision determined the respondent not to be a Convention refugee. It will be convenient to refer in these reasons to the Refugee Division as "the Board".
Reed J. certified the following question pursuant to subsection 83(1) of the Immigration Act, R.S.C., 1985, c. I-2 [as am. by S.C. 1992, c. 49, s. 73] (the Act):
Is the expiration of a Board member's term sufficient grounds to invoke subsection 63(2) of the Immigration Act, R.S.C., 1985, c. I-2?
I interpret the words "the expiration of a Board member's term" in the context of this appeal as referring to the expiration of an extension granted by the Chairperson pursuant to subsection 63(1) [as am. idem , s. 52].
The claim for Convention refugee status was heard by Board members Berman and Guthrie on June 22, 1994, and the decision was rendered on April 7, 1995, by member Berman alone. At page 7 of his decision Board member Berman stated:
The Federal Court of Appeal in Weerasinge, Dunstan v. M.E.I. has directed that when recourse has been had to subsection 63(2) of the Immigration Act, this fact must be clearly put on the record, together with a "complete statement of the material circumstances" in which this provision has been engaged. Otherwise, a decision made by a single Member is prima facie made without jurisdiction.
In accordance with subsection 69.1(7) of the Act, this claim was heard by a panel of two members, namely John G. Guthrie and Samuel Berman. However, there subsequently arose circumstances which have triggered the application of subsection 63(2) of the Act to these proceedings.
Mr. Guthrie ceased to hold office as a member of the Convention Refugee Determination Division on December 27, 1994. He participated in the disposition of the claim in accordance with section 63(1) of the Act. The present reasons, written and signed by the remaining member, reflect the thinking of the panel when the decision was made. Accordingly, the reasons signed by the remaining member who heard the claim are deemed to be the reasons of the panel. [Footnote omitted.]
Subsection 63(1) of the Act applies to all three divisions of the Immigration and Refugee Board. We are here concerned with the impact of the section upon the decision-making authority of the Refugee Division only. Section 63 reads as follows [subsection 63(2) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18)]:
63. (1) Any person who has resigned or otherwise ceased to hold office as a member of the Refugee Division, Adjudication Division or Appeal Division may, at the request of the Chairperson, at any time within eight weeks after that event, make, or take part in, the disposition of any matter previously heard by that person and, for that purpose, the person shall be deemed to be such a member.
(2) Where a person to whom subsection (1) applies or any other member by whom a matter has been heard is unable to take part in the disposition thereof or has died, the remaining members, if any, who heard the matter may make the disposition and, for that purpose, shall be deemed to constitute the Refugee Division or the Appeal Division, as the case may be.
The primary requirement of the Act as set out in subsection 69.1(7) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18]1 is that a claim be heard by a quorum of two Board members. The clear effect of subsection 69.1(10) [as enacted idem; S.C. 1992, c. 49, s. 60]2 is that a claim for Convention refugee status must be granted "in the event of a split decision" unless the matter is governed by subsection 69.1(10.1) [as enacted idem ]. An exception to these requirements is found in subsection 69.1(8) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 60],3 which permits a claim to be heard and determined by one Board member if the claimant "consents thereto".
These various provisions were examined by this Court in Weerasinge v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 330 (C.A.), where a case that had been heard by two members was disposed of by only one of them. It is not clear that the Chairperson had requested the other member to participate in the disposition of the matter pursuant to subsection 63(1). Mahoney J.A., writing for the Court, gave the following opinion, at pages 334-335:
The rights assured by section 7 of the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] are put in issue when a claim to be a Convention refugee is made. Absent consent, a claimant is entitled to a hearing by a two-member panel and is entitled to the benefit of any disagreement between them. Recourse to subsection 63(2) is a serious matter which denies a claimant a right accorded by the Act. A decision made by a single member is prima facie made without jurisdiction. When a claimant consents to or requests a hearing by a single member, that must be, as it invariably has been, clearly put on the record. It should be likewise when recourse has been had to subsection 63(2).
As a matter of law and to ensure that justice is seen to have been done, when subsection 63(2) is properly engaged a complete statement of the material circumstances should be put on the record. Such statement may, of course, be included in the reasons for decision.
These views were apparently based on the perceived absence of any explanation in the decision for the other Board member not participating in it.4
It had been earlier held that "the mere invocation of subsection 63(2)", without more, "is not sufficient to give rise to its application": Mehael v. Canada (Minister of Employment and Immigration) , [1993] F.C.J. No. 838 (T.D.) (QL), at paragraph 9. As was noted by Nöel J. in that case, at paragraph 10, such invocation left him "unable to ascertain whether the member in question had passed away, had ceased to hold office, or was simply unavailable when the reasons were given".
In Odameh v. Minister of Employment and Immigration (1995), 185 N.R. 9 (C.A.), this Court had to decide whether an explanation of the remaining member that the departed member of the panel had "ceased to hold office" satisfied the Weerasinge principle for invoking subsection 63(2). In disposing of the appeal MacGuigan J.A. stated for the Court, at page 10:
It should be noted that in Weerasinge, as was pointed out by McKeown, J., in Soukhaniouk et al. v. Minister of Employment and Immigration (1994), 85 F.T.R. 55 (T.D.), there was no statement at all put on the record as to why the matter was decided by a single member. McKeown, J., went on to distinguish the case before him as follows (58):
"In the case before me the member clearly sets out the reasons the claim was decided by one member and that was because the second member had left the board at the time the decision was made. Accordingly, in my view, the reasons for decision disclose why s. 63(2) is properly engaged."
In our opinion the case at bar is on all fours with Soukhaniouk and ought to be decided in the same way.
Although it would not be undesirable for details to be provided by the continuing Board member, we believe it is not strictly necessary. If s. 63(2) is invoked by that member, with the explanation that the other member has ceased to hold office as a member, that invocation carries with it the clear implication that the departed member was not requested by the chairman to participate in the decision of the matter within eight weeks of departure and did not in fact participate in the decision either then or earlier. In our view, this is a sufficiently complete statement of the material circumstances in accordance with the Weerasinge rule.
Reed J. was of the view that neither Weerasinge, supra, nor Odameh, supra, was dispositive of the issue before her. She went on, at page 316, to be guided by views she had expressed in Brailko v. Canada (Minister of Citizenship and Immigration) (1995), 97 F.T.R. 129 (F.C.T.D.), with respect to the meaning of the word "unable" in subsection 63(2), where she stated, at page 132:
The word "unable" in s. 63(2) is found in the phrase "unable to take part in the disposition thereof or has died . . .". I find it difficult to think that Parliament intended "unable" to include the situation in which a Board member knows when his or her term will end, participates in the hearing of an appeal, but simply does not get around to making a decision before expiration of the term of office (or within eight weeks thereafter as provided for in s. 63(1)). I read "unable" in association with the companion circumstance "or has died". In my view, being unable to take part in a decision refers to a situation in which something unexpected and beyond the control of the Board member occurs to render that person "unable". I do not read it as applying where a Board member simply declines to make a decision. This is particularly so in the face of legislative provisions which require a hearing by two Board members and which give the benefit of a split decision to the applicant and which require that the hearing and disposition of an appeal by one member can only proceed with the consent of the applicant (s. 69.1). [Emphasis added.]
She concluded by quashing the Board's decision on the ground that there was no evidence that Board member Guthrie was "unable" to take part in it and, as she stated at page 318 of her reasons, because "the explanation given for one member alone signing is at best ambiguous".
The jurisprudence emanating from the Trial Division indicates some difference of views with respect to the meaning of subsection 63(2).5 This divergence in opinion is well encapsulated in the following passage from the reasons of Reed J. in Brailko, supra, at page 131:
. . . two lines of authority appear to have developed after the decision in Weerasinge: one indicates that as long as an explanation is placed on the record, stating that the member's inability arose because that member ceased to hold office, this is sufficient to meet the purposes of 63(2). The other indicates that in circumstances where Board members know, at the time they participate in hearings, that they will not be available to take part in the decisions, there will be a breach of natural justice. Concomitantly, when it is clear from the record that Board members anticipate taking part in decisions before the expiration of their term, and then do not do so, a fuller explanation respecting the reasons for that inability is required. A mere statement that the individual's term of office had expired will not suffice.
In light of these conflicting opinions, it appears desirable to offer some guidance regarding the interpretation of subsection 63(2) and the application of the Weerasinge principle in the context of this appeal. At the same time, my analysis must be responsive to the particular question certified by Reed J., in that it must bear on the reasons for which she allowed the application for judicial review and be determinative of the appeal. See Malouf v. Canada (Minister of Citizenship and Immigration) (1995), 190 N.R. 230 (F.C.A.); Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4 (F.C.A.).
In my view, the objective of section 63 is to permit the Board to retain jurisdiction over a claim in cases where one of the Board members who participated in the hearing is unable to take part in the decision. This provision is intended to free the Board from having to reopen the claim and conduct a new hearing in the event that one of the members who heard the matter resigns or otherwise ceases to hold office, dies or is unable to partake in its final disposition.
Subsection 63(1) bestows upon the Chairperson the power of requesting that a Board member who has "resigned or otherwise ceased to hold office" participate in the disposition of a matter previously heard within eight weeks of that member resigning or otherwise ceasing to hold office. Absent such a request, the departed member could possess no authority to take part in the decision. I note that subsection 63(1) does not require such a person to participate in the disposition of a matter previously heard. It merely permits that person to do so.
Subsection 63(2), on the other hand, describes the circumstances in which one Board member alone may dispose of a matter previously heard by a panel of two Board members. It appears to address four distinct situations in which such a disposition may be made: first, "[w]here a person to whom subsection (1) applies . . . is unable to take part in the disposition [of the matter]"; secondly, where "any other member by whom a matter has been heard is unable to take part in the disposition" of the matter; thirdly, where a person to whom subsection (1) applies "has died"; and fourthly, where any other member by whom a matter has been previously heard "has died".
In my view, the present case falls within the first of these situations.6 It is clear that after Board member Guthrie ceased to hold office, he was requested by the Chairperson to take part in the disposition of a matter previously heard for up to eight weeks after the end of his term of office. By April 7, 1995, when the decision was rendered, the eight-week extension had expired. The departed member was then plainly "a person to whom subsection (1) applies" and, in the circumstances, "unable to take part in the disposition" of the matter.
This Court in Weerasinge, supra, acknowledged that the invocation of subsection 63(2) is a serious matter which denies claimants the statutory right to a decision by a two-member panel of the Board. Section 63 indicates that this right is not absolute, and that it can be abridged in the event that one of the Board members has resigned or otherwise ceased to hold office, died or was unable to participate in the decision. In construing section 63, I must be mindful that the Court performs an important supervisory role in ensuring that claimants are able to enjoy the rights accorded to them by the Act, and that the Board complies with the rules of natural justice. At the same time the Court must also be confident that, in the absence of evidence to the contrary, Board members take their responsibilities seriously and will not abuse the authority granted to them by section 63. That Board members are obliged to do so is clear from subsection 61(5) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 50] of the Act, which requires that they "devote the whole of their time to the performance of their duties under this Act". It is important to note that for the purpose indicated in subsection 63(1) a person whose term of office is extended by the Chairperson is deemed to be a member of the Board, and therefore subject to the obligation articulated in subsection 61(5).
Subsection 63(2) recognizes that during the eight-week period of extension the Board member might not be in a position to participate in the disposition of a matter. In my view, the very fact that the person has not taken part in the disposition of the matter after the expiry of such extension indicates that he or she was "unable" to do so. The departed Board member will have lost the required authority. There may well be many and varied reasons, depending on the circumstances of each individual case, why the decision was not rendered by both members during that extension period but that, it seems to me, is a separate matter. The statute itself does not, strictly speaking, command that any explanation be given. However, the existing jurisprudence of the Court, cited above, requires that a sufficient explanation be provided by the member who ultimately disposes of the matter on behalf of the Board by signing it alone. Whatever the explanation may be it obviously must be one that is contemplated by section 63.
Herein lies the significance of the Weerasinge principle. In order "to ensure", as Mahoney J.A. stated, "that justice is seen to have been done", the remaining Board member must place on the record a "complete statement of the material circumstances" giving rise to the invocation of subsection 63(2). Such a statement is intended to inform claimants of why they have lost the advantage secured to them by subsection 69.1(10). Reed J. concluded that this requirement was not satisfied in the case at bar. That issue must now be addressed.
Counsel for the respondent submits that the circumstances of this case are not comparable to a case in which a Board member simply loses authority to decide by "ceasing to hold office" and a statement to that effect is included in the decision. Such a situation existed in Odameh , supra, where this Court decided that a simple statement in the Board's decision to the effect that the departed Board member had ceased to hold office is a sufficient explanation for invoking subsection 63(2). Counsel contends that the requirement for a complete statement of the material circumstances is particularly needed where a decision is not rendered within a subsection 63(1) period of extension.
In my view, Board member Berman's bald statement that the departed member "participated in the disposition of the claim in accordance with section 63(1) of the Act" does not satisfy the Weerasinge principle. That statement sheds no light whatsoever on the circumstance or circumstances that prevented the two-member panel from rendering a decision before the expiry of the eight-week period of extension. While Board member Berman states that the "present reasons reflect the thinking of the panel when the decision was made", he fails to reveal precisely when the decision was made. It is clear nonetheless that the decision had yet to be rendered as required by subsection 69.1(9) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 60] of the Act. I respectfully agree with Reed J. who found Board member Berman's explanation to be "at best ambiguous". When subsection 63(2) is engaged where a Board member receives an extension pursuant to subsection 63(1), it is not a sufficient explanation to do what was done in this case. In my opinion, a more detailed explanation of the material circumstances giving rise to the departed member's inability to participate in the disposition of the matter within the extension period is required in order to satisfy the Weerasinge principle.
I have a further difficulty with Board member Berman's statement that the reasons signed by him alone "reflect the thinking of the panel when the decision was made".7 The decision was signed by Board member Berman on April 7, 1995, and a notice of the decision sent to the respondent on April 12, 1995, which is more than a month after the expiry of Board member Guthrie's eight-week extension. While it is true on the face of the Act that the "decision" required to be "rendered" pursuant to subsection 69.1(9) is different from the reasons referred to in subsection 69.1(11) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 60]8 , this latter subsection makes it clear that where the decision is against the claimant the written reasons are to be given "with the decision". In fact Board member Berman did just that by incorporating the decision in the body of the reasons as follows:
DECISION
For these reasons, the panel determines Ricki Narash Harricharan Singh not to be a Convention refugee.
Given the legislative scheme, in my view a "decision" rendered by the Board is one that is signed by each Board member who participates in disposing of the matter.9 As I have already noted, subsection 69.1(10) of the Act grants claimants the benefit of any disagreement between members of the Board. To my mind, this heightens the need to be absolutely certain of the views of each Board member. While Board members Berman and Guthrie may have discussed the respondent's case before the expiry of Board member Guthrie's extension and agreed that his claim should be dismissed, there was nothing in the record documenting Board member Guthrie's views before he left the Board. I respectfully agree with Reed J.'s observation at page 317 of her reasons, that as a practical reality of decision making "decisions often change with the writing of reasons." Requiring that each member of the panel indicate his or her agreement or disagreement with the final decision by signing ensures that the decision accurately reflects the opinions of each person who participated in it. Section 63 constitutes an exception to this requirement in the circumstances in which it applies to a Board member who does not sign.
I would answer the certified question as follows:
The expiration of a Board member's term is a sufficient ground to invoke subsection 63(2) of the Immigration Act, R.S.C., 1985, c. I-2.
I would otherwise dismiss the appeal on the ground that the member who signed the decision failed to provide a complete statement of the material circumstances in accordance with this Court's decision in Weerasinge, supra.
Linden J.A.: I agree.
McDonald J.A.: I agree.
1 69.1 . . .
(7) Subject to subsection (8), two members constitute a quorum of the Refugee Division for the purposes of a hearing under this section.
2 69.1 . . .
(10) Subject to subsection (10.1), in the event of a split decision, the decision favourable to the person who claims to be a Convention refugee shall be deemed to be the decision of the Refugee Division.
3 69.1 . . .
(8) One member of the Refugee Division may hear and determine a claim under this section if the person making the claim consents thereto, and the provisions of this Part apply in respect of a member so acting as they apply in respect of the Refugee Division, and the disposition of the claim by the member shall be deemed to be the disposition of the Refugee Division.
4 See, however, Latif v. Canada (Minister of Citizenship & Immigration) (1996), 45 Admin. L.R. (2d) 254 (F.C.T.D.), at p. 259, footnote.
5 See for example Ashraf v. Canada (Minister of Citizenship and Immigration) (1996), 107 F.T.R. 289 (F.C.T.D.); De Arce v. Canada (Minister of Citizenship and Immigration) (1995), 103 F.T.R. 72 (F.C.T.D.); Eryilmazli v. Canada (Minister of Citizenship and Immigration) (1997), 131 F.T.R. 22 (F.C.T.D.); Garrison v. Canada (Minister of Citizenship and Immigration) (1995), 90 F.T.R. 61 (F.C.T.D.); Kutovsky-Kovaliov et al. v. Canada (Secretary of State) (1995), 93 F.T.R. 293 (F.C.T.D.); Latif v. Canada (Minister of Citizenship & Immigration), supra, note 4; Mehael v. Canada (Minister of Employment and Immigration), supra; Mirzaei v. Canada (Minister of Citizenship & Immigration) (1995), 32 Imm. L.R. (2d) 69 (F.C.T.D.); Mohammed v. Canada (Minister of Citizenship and Immigration) (1997), 136 F.T.R. 253 (F.C.T.D.); Quintero v. Canada (Minister of Citizenship and Immigration) (1995), 90 F.T.R. 251 (F.C.T.D.); Sereguine v. Canada (Minister of Citizenship and Immigration) (1996), 108 F.T.R. 133 (F.C.T.D.); Sinishin v. Canada (Minister of Citizenship and Immigration) (1995), 96 F.T.R. 8 (F.C.T.D.); Sommariva v. Canada (Minister of Citizenship and Immigration) (1996), 110 F.T.R. 319 (F.C.T.D.); Soukhaniouk et al. v. Minister of Employment and Immigration (1994), 85 F.T.R. 55 (F.C.T.D.); Tirawi v. Canada (Minister of Citizenship and Immigration) (1997), 136 F.T.R. 235 (F.C.T.D.); Vega-Solis v. Canada (Minister of Citizenship and Immigration) (1995), 93 F.T.R. 211 (F.C.T.D.); Zivkovic v. Minister of Employment and Immigration (1994), 88 F.T.R. 192 (F.C.T.D.).
6 The meaning of the word "unable" as applied to the second situation just referred to need not be addressed in the present case.
7 I note that this very phraseology has been the subject of comment in several cases before the Trial Division, such as Latif, supra, note 4 and Garrison, supra, note 5. It must be noted that a decision of the Board is to be "rendered" as required by subsection 69.1(9), and not simply "made". That subsection reads:
69.1 . . .
(9) The Refugee Division shall determine whether or not the person referred to in subsection (1) is a Convention refugee and shall render its decision as soon as possible after completion of the hearing and send a written notice of the decision to the person and to the Minister.
The verb "render", as in the expression "to render judgment", has a well-understood meaning which is exemplified in Black's Law Dictionary , rev. 4th ed. St. Paul, Minn.: West Publishing, 1968, at p. 1460:
To pronounce, state, declare, or announce the judgment of the court in a given case or on a given state of facts.
8 S. 69.1(11)(a) reads:
69.1 . . .
(11) The Refugee Division may give written reasons for its decision on an application, except that
(a) if the decision is against the person making the claim, the Division shall, with the written notice of the decision referred to in subsection (9), give written reasons with the decision; . . .
9 Commenting on the importance of quorum requirements to decision making in IBM Canada Ltd. v. Deputy M.N.R., Customs and Excise, [1992] 1 F.C. 663 (C.A.), Décary J.A., speaking for the Court, at p. 675, maintained as follows:
. . . at some point in time, the panel must reach a decision collectively and each member must "participate" individually in that collective decision in agreeing with it or in dissenting from it. There has to be a meeting of the minds, each member being informed at least in a general way of the point of view of each of his colleagues. This, in my view, is what is meant by "making the decision".
He added that a decision which is not signed by a decision maker "does not necessarily equate with non-participation" in every case.