Mendez et al. v. Canada (Minister of Citizenship and Immigration), 2011 FC 1150

• Judge: Kelen, J.
• Court: Federal Court (Canada)
• Case Date: September 27, 2011
• Jurisdiction: Canada (Federal)
• Citations: 2011 FC 1150;(2011), 398 F.T.R. 139 (FC)

Mendez v. Can. (M.C.I.) (2011), 398 F.T.R. 139 (FC)

MLB headnote and full text

Temp. Cite: [2011] F.T.R. TBEd. NO.001

Rosa Maria Quiroz Mendez and Viridiana Garcia Quiroz (applicants) v. The Minister of Citizenship and Immigration (respondent)

(IMM-791-11; 2011 FC 1150)

Indexed As: Mendez et al. v. Canada (Minister of Citizenship and Immigration)

Federal Court

Kelen, J.

October 14, 2011.

Summary:

Mendez and her minor daughter (the applicants) left Mexico for Canada in 2009 and claimed refugee status. Mendez had been the victim of domestic violence and death threats from her husband. At the outset of the hearing before the Refugee Protection Division (the Board), the applicants' counsel requested an adjournment, as the applicants had not received the disclosure package. There was a disagreement between the Board Member and the applicants' counsel. The Board Member refused to adjourn the hearing and ruled that the applicants' counsel complete her questioning by 4:00 p.m., which was the deadline counsel imposed upon herself. After the hearing, counsel for the applicants made a motion for the Board Member to recuse himself due to a reasonable apprehension of bias. The Board found that the applicants were neither Convention refugees nor persons in need of protection, and denied the motion for recusal in the reasons for the decision. The applicants applied for judicial review, and sought the awarding of costs on a solicitor and client basis.

The Federal Court granted the judicial review application because of the Board's failure to consider all the relevant factors in deciding whether to grant an adjournment, and because the Member's conduct gave rise to a reasonable apprehension of bias. The court remitted the applicants' claims to the Board for re-determination by a different panel. The Board's conduct was not so egregious as to justify the granting of costs. The Board Member was provoked by counsel at the hearing.

Administrative Law - Topic 2087

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - General - [See Aliens - Topic 4088 ].

Aliens - Topic 1326

Admission - Refugee protection, Convention refugees and persons in need of protection - Procedure - The hearing before the Refugee Protection Division (the Board) ended before counsel for the applicants had completed her questioning of the applicants - The Board instructed counsel to make detailed written submissions on any remaining areas of questioning of the principal applicant, and proposed areas of questioning of the minor applicant, to allow the Board to determine whether to reconvene for additional testimony - Counsel's written submissions did not provide details on the relevant areas of questioning remaining - The Board refused to grant an additional hearing day - On judicial review, the Federal Court found that the Board's refusal to grant additional hearing time did not constitute a breach of procedural fairness - The Board afforded the applicants the opportunity to rectify any potential unfairness that might have resulted from insufficient time during the hearing - Based on the submissions provided by counsel, it was open to the Board to decide that no additional hearing time was necessary to ensure procedural fairness - See paragraphs 62 to 65.

Aliens - Topic 1329.3

Admission - Refugee protection, Convention refugees and persons in need of protection - Right to a fair hearing - [See second Aliens - Topic 4084 ].

Aliens - Topic 4084

Practice - Hearings - Adjournments or postponements - The Federal Court stated that "[t]he granting of adjournments or postponements is discretionary in nature and there is no presumption of entitlement. ... However, the Board is required to consider all relevant factors before reaching its decision. Subsection 48(4) of the Refugee Protection Division Rules ... contains a non-exhaustive list of relevant factors in this determination. ... [T]he Board must at least indicate that it has turned its mind to these factors before issuing a negative decision on a request for adjournment" - See paragraphs 55 and 56.

Aliens - Topic 4084

Practice - Hearings - Adjournments or postponements - At the outset of the hearing before the Refugee Protection Division (the Board), the applicants' counsel informed the Board that the Board's disclosure was not sent to the applicants - The Board denied counsel's request for an adjournment, stating that its records indicated that the applicants had in fact received disclosure - The applicants had, in fact, not received disclosure - On judicial review, the applicants submitted that the Board's refusal breached the principles of procedural fairness - The Federal Court, relying on the hearing transcripts, found that the Board failed to consider the relevant factors in s. 48(4) of the Refugee Protection Division Rules - The failure of the Board to send the disclosure package to the applicants would likely constitute "exceptional circumstances" for allowing an adjournment - The lack of disclosure also impacted the amount of time the applicants had to prepare for the hearing - Thus, the denial of the adjournment constituted a reviewable error - On its face, the denial constituted a breach of the rules of natural justice and the right to a fair hearing - "It is not a fair hearing if counsel for the applicants was not able to properly prepare for the hearing" - See paragraphs 57 to 61.

Aliens - Topic 4088

Practice - Hearings - Constitution of board (incl. bias) - The applicants submitted that the conduct of the Refugee Protection Division (the Board Member) gave rise to a reasonable apprehension of bias; specifically, that the Board Member denied their request for adjournment, disregarded their counsel's explanations regarding the lack of disclosure, cut counsel off in her arguments for the adjournment, and refused to grant an additional hearing day - Counsel for the applicants refused to accept the Board Member's procedural ruling that she complete her questioning by 4:00 p.m., which was the deadline counsel imposed upon herself - The Board Member raised his voice in an intemperate manner - The Federal Court found that there was a reasonable apprehension of bias, "considering the totality of the circumstances, and even in light of the presumption of impartiality of the Board" - On listening to the audio recording, the court concluded that the presiding Member lost control of his demeanour - "[T]he presiding Member must conduct the hearing in an objective, moderate, irreproachable manner, with politeness and basic courtesy ... If a judge is angry and shouting at a lawyer, a reasonable person would have a reasonable apprehension that the judge was biased against that lawyer's case" - See paragraphs 66 to 82.

Aliens - Topic 4105

Practice - Costs - For special reasons - The applicants were successful on their judicial review application, because of the failure of the Refugee and Protection Division to consider all the relevant factors in deciding whether to grant an adjournment, and because the Member's conduct gave rise to a reasonable apprehension of bias - The applicants submitted that the "egregious conduct by the Board Member" justified the awarding of costs on a solicitor and client basis - The Federal Court did not find the Board's conduct so egregious as to justify the granting of costs - The Board Member was provoked by counsel at the hearing - See paragraphs 84 and 85.

Cases Noticed:

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 24].

Canada (Minister of Citizenship and Immigration) v. Cetin, [2007] F.C.J. No. 1786, refd to. [para. 26].

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; 153 N.R. 321, refd to. [para. 30].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 49].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 49].

Corzas Monjaras et al. v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 484; 2010 FC 771, refd to. [para. 50].

Rodriguez Perez v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 632; 2009 FC 1029, refd to. [para. 50].

Fuentes Sierra et al. v. Canada (Minister of Citizenship and Immigration) (2009), 354 F.T.R. 243; 2009 FC 1048, refd to. [para. 55].

Modeste v. Canada (Minister of Citizenship and Immigration) (2006), 299 F.T.R. 95; 2006 FC 1027, appld. [para. 56].

Guermache v. Canada (Minister of Citizenship and Immigration) (2004), 257 F.T.R. 272; 2004 FC 870, refd to. [para. 78].

I.M.P.P. v. Canada (Minister of Citizenship and Immigration) (2011), 391 F.T.R. 210; 2011 FC 712, refd to. [para. 83].

Rodriguez et al. v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 622; 2011 FC 1017, refd to. [para. 83].

Yadav v. Canada (Minister of Citizenship and Immigration) (2010), 370 F.T.R. 174; 2010 FC 140, refd to. [para. 84].

Statutes Noticed:

Federal Courts Immigration and Refugee Protection Rules, SOR/93-22, rule 22 [para. 46].

Refugee Protection Division Rules, SOR/2002-228, sect. 48(4) [para. 45].

Counsel:

Pamila Bhardwaj, for the applicants;

David Cranton, for the respondent.

Solicitors of Record:

Pamila Bhardwaj, Toronto, Ontario, for the applicants;

Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard at Toronto, Ontario, on September 27, 2011, before Kelen, J., of the Federal Court, who delivered the following reasons for judgment and judgment, dated October 14, 2011.