Introduction
This Practice Notice introduces new procedures to address the problem of late disclosure of documentary evidence filed at the Refugee Protection Division (RPD or Division) of the Immigration and Refugee Board of Canada (IRB). As described below, parties must now make a formal application to submit late evidence.
This Notice supersedes any other Practice Notice issued by the RPD to the extent they may differ.
Context
The RPD has the obligation to proceed quickly and informally,Footnote 1 and must provide parties a reasonable opportunity to present evidence.Footnote 2 Documents for use at a hearing must be filed no later than 10 days before the hearing date, unless responding to a document filed by another party or the Division, in which case the time limit is five days.Footnote 3 Documents filed late may not be used unless allowed by the Division.Footnote 4 These rules are reiterated in Chairperson’s Guideline 7.Footnote 5
Despite a previous Practice Notice,Footnote 6 there continues to be widespread disregard for these rules. This is having a serious impact on the RPD’s ability to effectively manage its caseload.
Although RPD Rule 36 sets out factors for a member to consider when deciding whether to accept late documentary evidence, it does not set out a procedure for submitting late evidence. Therefore, the RPD is implementing the following new procedures.
New procedures
A party who wishes to file documentary evidence with the RPD after the time limits set out in RPD Rule 34(3) must seek permission by making an application in conformity with RPD Rule 50.Footnote 7 However, the party making the application is not required to give evidence in an affidavit or a statutory declaration.
In addition, the application will, by definition, be made beyond the 10-day time limit set out in rule 50, but it must be made without delay once the party decides to file late documents.
The application should address all relevant factors related to the acceptance of late documents, including those set out in RPD Rule 36.
Late documentary evidence filed without such an application will not be considered and will be discarded. A copy will not be placed in the file. A notice will be sent to the party indicating that the documents were not accepted for filing and why.
For greater certainty, the same requirements apply to subsequent sittings as to the first sitting. For example, if a hearing is not completed at the first sitting and is adjourned to be completed at the second sitting, an application is not required if the documents are received by their recipients no later than 10 days before the date fixed for the second sitting (or five days if the document is provided to respond to another document); if a party does not provide the documents in accordance with that time limit, the party must make an application.
Authority
The Chairperson of the IRB has the authority to take any action that may be necessary to ensure that members of the Board are able to carry out their duties efficiently and without undue delay.Footnote 8 This authority has been delegated to Deputy Chairpersons. In addition, in the absence of a provision in the RPD Rules, the Division may do whatever is necessary to deal with a matter.Footnote 9
Effective date
This Practice Notice comes into force on June 1, 2018, but it does not apply to documents provided to the RPD before that date.
Signed on May 7, 2018
Shereen Benzvy Miller
Deputy Chairperson, RPD
Footnotes
- Note 1
Immigration and Refugee Protection Act, S.C. 2001, c.27, ss. 162(2).
Return to note 1 referrer
- Note 2
Ibid, s. 170(e).
Return to note 2 referrer
- Note 3
Disclosure of documents by party
34 (1) If a party wants to use a document in a hearing, the party must provide a copy of the document to the other party, if any, and to the Division.
Proof that document was provided
(2) The copy of the document provided to the Division must be accompanied by a written statement indicating how and when a copy of that document was provided to the other party, if any.
Time limit
(3) Documents provided under this rule must be received by their recipients no later than
(a) 10 days before the date fixed for the hearing; or
(b) five days before the date fixed for the hearing if the document is provided to respond to another document provided by a party or the Division.
Return to note 3 referrer
- Note 4
Use of undisclosed documents
36 A party who does not provide a document in accordance with rule 34 must not use the document at the hearing unless allowed to do so by the Division. In deciding whether to allow its use, the Division must consider any relevant factors, including
(a) the document’s relevance and probative value;
(b) any new evidence the document brings to the hearing; and
(c) whether the party, with reasonable effort, could have provided the document as required by rule 34.
Return to note 4 referrer
- Note 5
Chairperson Guidelines 7: Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division, December 15, 2012.
Return to note 5 referrer
- Note 6
Refugee Protection Division Practice Notice: Compliance with Refugee Protection Division Rules, December 8, 2014.
Return to note 6 referrer
- Note 7
How to Make an Application
Written application and time limit
50 (1) Unless these Rules provide otherwise, an application must be made in writing, without delay, and must be received by the Division no later than 10 days before the date fixed for the next proceeding.
Oral application
(2) The Division must not allow a party to make an application orally at a proceeding unless the party, with reasonable effort, could not have made a written application before the proceeding.
Content of application
(3) Unless these Rules provide otherwise, in a written application, the party must
(a) state the decision the party wants the Division to make;
(b) give reasons why the Division should make that decision; and
(c) if there is another party and the views of that party are known, state whether the other party agrees to the application.
Affidavit or statutory declaration
(4) Unless these Rules provide otherwise, any evidence that the party wants the Division to consider with a written application must be given in an affidavit or statutory declaration that accompanies the application.
Providing application to other party and Division
(5) A party who makes a written application must provide
(a) to the other party, if any, a copy of the application and a copy of any affidavit or statutory declaration; and
(b) to the Division, the original application and the original of any affidavit or statutory declaration, together with a written statement indicating how and when the party provided a copy to the other party, if any.
Return to note 7 referrer
- Note 8
Immigration and Refugee Protection Act, S.C. 2001, c.27, par. 159(1)(g).
Return to note 8 referrer
- Note 9
RPD rule 69.
Return to note 9 referrer