T-2012-89
Jamal Saleh (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
INDEXED AS: SALEH V. CANADA (MINISTER OF EMPLOYMENT
AND IMMIGRATION) (T.D.)
Trial Division, Joyal J.—Ottawa, October 25 and
November 14, 1989.
Judicial review — Prerogative writs — Prohibition — To
prohibit Immigration and Refugee Board (Convention Refugee
Determination Division) from continuing inquiry because of
Chairman's comments re newspaper articles produced in evi
dence — Upon refusal of first request for adjournment solici
tor alleging denial of natural justice and requesting adjourn
ment to bring matter before Federal Court and to attend at
other inquiry on same day — Chairman refusing but according
one week to file written submissions in lieu of continuing oral
argument — Circumstances not such that applicant's rights
denied — Chairman answering complaint by allowing filing of
written submissions — Intervention of Court not justified
Applicant's rights not irreparably jeopardized — S. 70 Immi
gration Act permitting Refugee Division inquiry to proceed
expeditiously, with flexibility and without undue formality
S. 70 permitting infusion of common sense and reality into
proceedings to offset formalism legal authorities tending to
create in administrative proceedings — Each case somewhat
unique — Administrative procedural rules reflecting equitable
principles.
Immigration — Practice — S. 70 Immigration Act permit
ting Convention Refugee Determination Division of Immigra
tion and Refugee Board inquiries to proceed in flexible
manner, without undue formalism and expeditiously — S. 70
allowing for infusion of common sense and reality to offset
formalism legal authorities tending to create in administrative
proceedings.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
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], ss. 7, 24.
Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 46(3) (as
am. by S.C. 1988, c. 35, s. 14), 70 (as am. idem, s. 18).
CASES JUDICIALLY CONSIDERED
CONSIDERED:
Singh et al. v. Minister of Employment and Immigra-
tion, [1985] 1 S.C.R. 177; (1985), 17 D.L.R. (4th) 422;
12 Admin. L.R. 137; 14 C.R.R. 17; 58 N.R. 1; Gonzales
v. Minister of Employment and Immigration, [1981] 2
F.C. 781; Re Patchett et al. and Law Society of British
Columbia et al. (No. 2) (1979), 101 D.L.R. (3d) 210;
[1979] 4 W.W.R. 534; 12 B.C.L.R. 82.
REFERRED TO:
Komo Construction Inc. et al. v. Commission des Rela
tions de travail du Quebec et al., [1968] S.C.R. 172;
(1967), 1 D.L.R. (3d) 125; Arumugam v. Minister of
Employment and Immigration (1986), 72 N.R. 388
(F.C.A.); Attorney General of Canada v. Lachapelle,
[1979] 1 F.C. 377; (1978), 91 D.L.R. (3d) 674 (T.D.);
Plombelec Inc. c. Melancon, [1978] R.P. 31 (Que. C.A.).
AUTHORS CITED
de Smith, Stanley A. Judicial Review of Administrative
Action, 3rd ed. London: Stevens & Sons Ltd., 1973.
COUNSEL:
Denis Buron for applicant.
Serge Fregeau for respondent.
SOLICITORS:
Saint-Pierre et Buron, Montreal, for appli
cant.
Deputy Attorney General of Canada for
respondent.
The following is the English version of the
reasons for order rendered by
JOYAL J.: The facts raised by this application
for a writ of prohibition and relief under section 24
of the 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 not in
dispute.
Those facts are based on the text of the tran
script at a hearing before the Immigration and
Refugee Board, Refugee Division, held in Mon-
treal on September 15, 1989. At that time the
applicant claimed refugee status, and crossed the
threshold of credibility following an inquiry by an
adjudicator under subsection 46(3) of the Immi
gration Act, 1976 [S.C. 1976-77, c. 52 (as am. by
S.C. 1988, c. 35, s. 14)].
The applicant, a Lebanese by origin, claimed
that the dangers to his safety in Lebanon met the
requirements of the United Nations Convention
Relating to the Status of Refugees [28 July, 1951,
189 U.N.T.S. 137]. In fact, from the information
in the record the applicant said he was caught in a
conflict between the Amal group and the Hezbol-
lah group, two Lebanese factions which were regu
larly at odds in that country.
When the applicant was examined about this by
his counsel, the presiding member of the tribunal
pointed out that the conflict between the Amal and
Hezbollah forces had been followed by an invasion
by the Syrians and a conflict with the Christians.
The presiding member then suggested to the
applicant that a truce had apparently been
arranged between these two groups. This is when
counsel for the applicant intervened, saying "I
have a document that will deny that comment, Mr.
President" and the presiding member replied
"Well, you can deposit that document". The pre
siding member made the following comments:
And there's been a general unification, or a joint effort with
the Syrians in conflict with the Christian Lebanese forces as led
by General Aoun. And this is just a general comment in regard
to the situation as it exists in the last short period of time in
Lebanon.
Counsel for the applicant then entered in evi
dence two articles from the newspaper The
Gazette dated July 8 and 10, 1989, to show that
the conflicts between the Amal and Hezbollah
groups continued to exist.
The presiding member replied:
Okay, well, your material has been deposited. If we want to
rely on articles in the Gazette, there was a series done in The
Gazette on August the 19th, that dealt with the conflict
situation in Lebanon ... So that's more recent material. And
the sources I tend to rely on is go beyond the Gazette [sic].
So that's all I need to say on that point.
Counsel for the applicant then asked:
"Mr. President, I will have to ask you to produce the
evidence that you are adducing yourself".
And the presiding member replied:
"I don't have to produce anything to satisfy your needs".
Counsel insisted and the presiding member
added:
Well, I quoted the 19th of August out of courtesy. I repeat, I
do not have to produce anything to satisfy you as counsel.
Where I sit in terms of material that is known, that is
established, and it's a common fact, and it's incumbent upon
you as counsel to make yourself aware of it. And that's the
end of the discussion.
The inquiry then proceeded in the usual way
until counsel for the applicant told the tribunal
that he would have to ask for an adjournment "to
answer the evidence that was adduced today with
out being produced", referring to the content of
the article in The Gazette of August 19, 1989.
The presiding member later said the following:
Concerning your request, and I think if I heard you correctly,
for adjournment, I fail to see the need for an adjournment at
this time. Specifically to provide you with the occasion to
respond to comments made by me. Comments which are made
by me in terms of just basic judicial knowledge of a situation.
So your motion, your request for an adjournment is denied ...
So again, I repeat, I see no need for us to adjourn and delay the
proceedings so that you can respond to general comments made
from the bench.
As may be seen from reading the foregoing,
communications between the presiding member
and counsel for the applicant became somewhat
tense, as indicated by the following statements:
So Mr. President, at this time, I will have to request
another adjournment for two supplemental reasons. First
of all, and the most important one, your denial for me to
answer or to comment, or to have any opportunity to
analyze your comment and sources, is a complete denial of
natural justice, and I request an adjournment for the
purpose of asking Federal Court of Canada to decide if
you can continue to sit in this case in the circumstances.
That is, unless you change your prior decision.
Second of all, my services have been retained in another
case this afternoon, which was postponed by an adjudica
tor of Immigration, to this date. And he had indicated me
that if I have availability this afternoon that he would
request me to present myself. I had commented at the time
that I had a case in the morning, but I should be available
in the afternoon. And in the circumstances, I intend to
present myself at 1200 Papineau at 1:00 o'clock this
afternoon. Which would not leave me the time to present
all my arguments before going there. So for all these
reasons Mr. President, I will ask you to adjourn this case,
as indicated, unless you review your prior decision as far as
comments are concerned, I will, in the meantime, apply to
Federal Court to have you removed from this case.
A. Counsel, the comments that you've made with regard to
denial of natural justice are at best spurious, and not
worthy of a response from the bench. So my decision, my
original decision stands, and we will not adjourn. With
your regard to your request for adjournment so that you
can go to Papineau, or wherever, you must realize that
when you accept to represent a claimant and present
yourself in front of this tribunal, you're undertaking a very
serious responsibility. And this tribunal is paramount, and
takes precedence over any other claim to your time, so I
see no reason for us to adjourn to allow you to go there.
However, in good faith, I will extend you the possibility to
submit your submissions in writing, and I will provide you
with one week to do so.
The presiding member then asked the refugee
hearing officer to submit a summary of the facts.
When she completed this, counsel for the applicant
said he was satisfied with the review.
After a short submission by the refugee hearing
officer, the presiding member asked counsel to
submit his argument. I reproduce the text of it in
full here:
BY PRESIDING MEMBER (TO COUNSEL)
- Counsel, as I said earlier, I'm prepared to extend to you
the opportunity to submit your submissions in writing in
order to accommodate you. So if you accept this proposal,
and you have until noon, 12:00 noon on the 22nd of
September to submit your submissions in writing. We will
terminate the proceedings at this point.
A. May I ask what happen if I refuse.
- Again, it's another spurious question on your part. Your
choice is to make your submission right now or to submit
them in writing. And when you refer to natural justice in
defence of a position, if you would want us at this tribunal
and this Commission to take you seriously, you would
withdraw that particular comment and the question.
A. Mr. Hendricks, I have, right now, a lot of problems to take
yourself seriously.
- Mr. Buron, you're out of order.
A. And what I intend to do at this point, is to accept to
produce written arguments, that being made without
prejudice. And that taking into consideration I advise you
of such a thing, that I will move into Federal Court in the
meantime and I will ask the Federal Court to have a new
hearing in this case. That is, once again, without prejudice,
and I do not recall having closed my evidence, and do not
consider that closed at this moment. Thank you.
- Mr. Counsel, you have until 12:00 noon, the 22nd of
September to submit your submissions or you make them
right now before leaving. And that's the choice you have.
So you decide which course you're going to take.
A. As I said, I accept to submit by written evidence as
directed without prejudice.
- Well, enough said.
If I understand counsel for the applicant's posi
tion correctly, he felt aggrieved by the attitude of
the presiding member when the latter drew his
attention to another article in The Gazette which
apparently to some extent contradicted the less
recent articles referred to by counsel himself.
Counsel then adopted a confrontational attitude,
accused the tribunal of a breach of natural justice,
demanded an adjournment and refused to partici
pate in the argument stage.
Counsel for the applicant interpreted all these
events as justifying intervention by prerogative
writ, to prohibit the tribunal from concluding the
inquiry, order a new inquiry and require that this
be held before a new tribunal with different
members.
The applicant relied on section 7 of the Canadi-
an Charter of Rights and Freedoms and cited the
Supreme Court of Canada judgment in Singh et
al. v. Minister of Employment and Immigration,
[1985] 1 S.C.R. 177, in which the Court held that
a person claiming refugee status was entitled to
the application of the rules of fundamental justice
in determining his status. This means that in an
inquiry of this type the procedural system must at
least give the person claiming refugee status a
sufficient opportunity to present his case and know
what he has to prove.
The applicant also cited the Federal Court of
Appeal judgment in Gonzalez v. Minister of
Employment and Immigration, [1981] 2 F.C. 781,
in which the Court of Appeal set aside a decision
of the Immigration Appeal Board on the ground
that in that decision the Board had relied on
information obtained at other hearings before the
same tribunal relating to conditions that existed in
the claimant's country of origin, Chile. Urie J. said
as to this, at page 782:
The information was not the sort of information of which
judicial notice could be taken in proceedings before a court nor
was it of the general character well known to the Board and to
the public referred to in the Maslej case.
On the question of a person's right to be physi
cally present at an inquiry and the privilege of
submitting oral argument, the applicant relied on a
judgment of the British Columbia Supreme Court
in Re Patchett et al. and Law Society of British
Columbia et al. (No. 2) (1979), 101 D.L.R. (3d)
210. Anderson J. in his reasons cited the principle
stated by de Smith, Judicial Review of Adminis
trative Action (3rd ed., 1973), at page 177, and
also that of Pigeon J. in Komo Construction Inc. et
al. v. Commission des Relations de travail du
Quebec et al., [1968] S.C.R. 172. It is clear from
reading everything that is said in that judgment
that the right to oral participation depends on the
particular circumstances of an inquiry, the subject-
matter dealt with and the consequences involved.
For the rules of natural justice to apply in the
case at bar, the Court must above all determine
whether the particular events which occurred at
the applicant's inquiry were such as to infringe his
rights and justify intervention by the Court.
The amendments to the Immigration Act, which
came into effect on January 1 of this year, indi
cates the type of procedure that the tribunal must
observe at an inquiry. I quote section 70 [as am.
by S.C. 1988, c. 35, s. 18], which reads as follows:
70. (1) The Refugee Division shall sit at such times and at
such places in Canada as are considered necessary by the
Chairman for the proper conduct of its business.
(2) The Refugee Division shall deal with all proceedings
before it as informally and expeditiously as the circumstances
and the considerations of fairness permit.
(3) The Refugee Division is not bound by any legal or
technical rules of evidence and, in any proceedings before it, it
may receive and base a decision on evidence adduced in the
proceedings and considered credible or trustworthy in the cir
cumstances of the case.
(4) The Refugee Division may, in any proceedings before it,
take notice of any facts that may be judicially noticed and,
subject to subsection (5), of any other generally recognized
facts and any information or opinion that is within its special
ized knowledge.
(5) Before the Refugee Division takes notice of any facts,
information or opinion, other than facts that may be judicially
noticed, in any proceedings, the Division shall notify the Minis
ter, if present at the proceedings, and the person who is the
subject of the proceedings of its intention and afford them a
reasonable opportunity to make representations with respect
thereto.
Reading this provision leads us to expect that at
any inquiry there may be times when the strict
rules of procedure or evidence must give way to
common sense or the reality of the matter. An
intervention by a member of a tribunal, which may
have the appearance of being improper, does not
necessarily result in such a denial of justice that
the rights of an individual will always be infringed
and be a basis for judicial intervention ipso facto.
The context in which the events occurred and the
ongoing circumstances of the whole inquiry must
be taken into account.
The comments made by the presiding member
are open to two interpretations. The first would be
to give them a somewhat insignificant meaning,
having no serious consequences. These comments
were made following evidence submitted by coun
sel for the applicant by means of certain Gazette
articles on July 8 and 10, 1989 regarding events in
Lebanon. A reference to the article of August 19,
1989 may be less an aspect of contradictory evi
dence than an indication to counsel that newspaper
articles regarding events in Lebanon do not neces
sarily have great evidentiary value, or that one
newspaper article applies as much as another. It
might be a sort of warning to counsel that he
should hesitate to base his case and his argument
on the July articles and would be well advised to
look at more recent articles. This is certainly the
meaning that could be given to the words of the
presiding member, who said "If we want to rely on
articles in The Gazette . . .", suggesting to counsel
that he should not place too much reliance on such
articles.
In this context, it would be hard to conclude
that the presiding member's intervention constitut
ed an infringement of the applicant's rights. It
would suggest that the dramatic use subsequently
made of it by counsel was a fabrication and a long
way from the reality.
The other interpretation would be less favour
able to the presiding member. It would in some
degree recognize that the reaction of counsel was
correct and conclude that this was indeed evidence
introduced at the hearing by the presiding
member, who subsequently refused to produce
documentation in support of it. Regardless of the
presiding member's contention that it was coun
sel's responsibility to familiarize himself with it or
that in any case the article in question was a
matter of judicial notice, there may have been a
breach of natural justice in that the applicant
could not know the evidence against him and was
not in a position to rebut it.
However, others things occurred at the inquiry.
As indicated by the transcript, counsel requested
an adjournment not only to obtain evidence in
rebuttal but also in order to be present at another
inquiry scheduled for later in the day. The text of
the transcript recounts the exchanges on either
side. In my view, the decision made by the presid
ing member to allow counsel to file a written
argument within a week is a valid response to the
latter's objection. That period of time allowed
counsel to bring forward whatever he thought was
necessary to protect his client's interest.
It is true there is well-settled precedent in the
cases cited by the applicant providing certain guar
antees to anyone whose interests are the subject of
an administrative proceeding. To ensure that they
are observed, a court exercises a supervisory func
tion and will intervene when it feels that the facts
justify it. However, each case is to some extent sui
generis. The principles stated in a particular case
do not justify its indiscriminate application.
The rules of administrative procedure essentially
reflect the principle of fairness. I must therefore
take account of the realities and apply some
common sense to the matter as a set off against the
formalism which may be created by legal theory
and on which applicants and counsel, may wish to
rely. Taking a contrary course would simply be
allowing administrative procedure to move towards
a formalism that would destroy its substance and
the nature of which would be increasingly subject
to abstract and artificial rules. This may be what
has occurred in the area of criminal proceedings.
However, such excessive formalism should not pre
vail when the legislature favours a statutory
system to decide on whether a person is entitled to
refugee status and, in order to avoid an excessively
rigid procedure, allows a court to adopt a more
flexible and expeditious method. This is in fact the
policy clearly expressed by the legislature in sec
tion 70 of the Act.
Counsel for the applicant may be right in think
ing that the attitude of the presiding member
towards him was somewhat authoritarian or did
not reflect the standard of conduct expected from
any person exercising quasi-judicial powers. On
the other hand as any judge knows, when such a
person is dealing with experienced counsel, the
tribunal's attitude to counsel would tend to be
more demanding. In reacting to it human vanity
will often take precedence over rational discourse.
In any case, I must conclude that the reasons
presented by counsel for the applicant could not
justify my intervention at this stage of the proceed
ings. The interpretation I give to the provisions of
section 70 of the Act allows some latitude in the
evidence which the parties may accept or submit at
the inquiry. Counsel for the applicant should him
self know that if the ordinary rules of evidence
were applied, the Gazette articles he cited himself
would be inadmissible because of the hearsay rule
and that he would have had to call the persons who
wrote them. If the admissibility of such evidence is
not questioned, is it logical to apply a stricter rule
to the comments of the presiding member of the
tribunal? Would not this be a matter of imposing
double standards on these proceedings?
In my opinion the presiding member's action,
when he later allowed counsel for the applicant a
week to file his submission, eliminated any fear
that the applicant's rights would be irreparably
affected and that the inquiry would become de
facto vitiated.
I must accordingly allow the inquiry to proceed
and the tribunal to arrive at its decision. If this
decision is unfavourable to the applicant and his
counsel finds it to contain any errors, he can then
proceed with other remedies.
As I have decided on the facts in the record that
I should not intervene, I do not need to consider
the other points raised by counsel for the respond
ent regarding the jurisdiction of the Federal Court
Trial Division to grant the applicant the relief
mentioned in section 24 of the Charter, whether
the remedy is inopportune or premature and the
various principles discussed in such cases as
Arumugam v. Minister of Employment and
Immigration (1986), 72 N.R. 388 (F.C.A.);
Attorney General of Canada v. Lachapelle, [1979]
1 F.C. 377 (T.D.); Plombelec Inc. c. Melancon,
[1978] R.P. 31 (Que. C.A.).
The application is dismissed with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.