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4. JOINDER OF CASES4. JOINDER OF CASES

4.1 INTRODUCTION

Cases are "joined" when they are heard at the same time. This chapter discusses the procedures for joining and for separating claims or applications, and it offers suggestions for the conduct of a joint hearing. Special attention is given to claims from families as these constitute the most frequent instances of joinder. Joinder applies both to hearings into claims and hearings of applications by the Minister regarding cessation or vacation of Convention refugee status.

Claims of family members ( i.e., the legal or de facto spouse, dependant children, father, mother, brothers or sisters of the claimant) are routinely joined [ CRDD Rule 10(2)]. In other cases, an Assistant Deputy Chairperson or coordinating member may order that two or more claims be processed jointly where the ADC or CM believes that no injustice is thereby likely to be caused to any party [ CRDD Rule 10(1)].

On application by a party, or on the members' own motion at the time of the hearing, the members may order that the claims or applications be heard separately, where the members believe that hearing the claims or applications jointly is likely to cause an injustice to any party [ CRDD Rule 10(3)].

4.2 ADVANTAGES OF JOINING CASES

The advantages of joining claims or applications include:

• faster results for all parties
• avoiding inconsistent determinations
• avoiding duplication of presentation of evidence,
• making it easier on witnesses
• allowing the Refugee Division to hear more claims by making members and hearing rooms available
• possible saving on counsel fees for claimants
• avoiding having to issue a summons to family members

4.3 OVERVIEW OF CRDD RULE 10 ON JOINDER

The Immigration Act directs the Refugee Division to deal with all proceedings "as informally and expeditiously as the circumstances and the considerations of fairness permit" [ Immigration Act, s. 68(2)]. The joinder of claims helps the Division meet that objective.

The Act, however, does not specifically mention the joinder of claims or applications. The Act does provide for rules to be made governing practice and procedure in the Refugee Division [ Immigration Act, s. 65(1)(a)] and, accordingly, CRDD Rule 10 has been made to deal with joinder of cases.

CRDD Rule 10 covers (i) hearings into claims, (ii) applications by the Minister regarding cessation or vacation, and (iii) all other matters dealt with by application, for example, a motion for a rehearing. The purpose of Rule 10 is to promote efficiency in the work of the Refugee Division without sacrificing fairness.

Under CRDD Rule 10(1), an Assistant Deputy Chairperson or coordinating member may order that two or more claims be processed jointly where the ADC or CM believes that no injustice is thereby likely to be caused to any party.

Under CRDD Rule 10(2), claims of the legal or de facto spouse, dependant children, father, mother, brothers or sisters of the claimant are joined, unless a CRDD member orders otherwise, pursuant to CRDD Rule 10(3).

Under CRDD Rule 10(3), a party may apply to have the claims heard separately. The members may grant that application and order that the claims be heard separately, where the members believe that hearing the claims jointly would likely cause an injustice to any party.

Also under CRDD Rule 10(3), the members, on their own motion ( i.e., on their own initiative) at the time of the hearing, may order that the claims be heard separately where they believe that hearing the claims jointly would likely to cause an injustice to any party. [ CRDD Rule 10(3)]
 

4.4 WHICH CASES SHOULD BE JOINED

Cases ought to be joined where it is administratively convenient to do so and no serious disadvantage will arise to claimants or applicants as a result. Where cases seem to be related by common facts, issues, or questions of law, it is usually fair and efficient to hear them at the same time.

The Refugee Division endeavours, whenever possible, to hear claims of family members (particularly spouses and children) in a joint hearing. Family members usually retain the same counsel, base their claims on the same set of circumstances, and are comfortable in each other's presence, all of which are factors which make joinder appropriate. For the same reasons, it is often desirable, as well, to hold a joint hearing into the claims of other less closely related persons.

Another situation which may be suitable for joinder of claims is where the claimants have arrived in Canada together from the same country. For example, where a group of four claimants who jumped ship together have given the same reasons for fearing persecution and have retained the same counsel, it might be fair and convenient for all to have their cases heard together. They may, accordingly, consent to the joinder of their cases. Where they do not consent, an ADC or CM may consider whether to issue an order for joinder under CRDD Rule 10(1). Experience so far has shown this to be an exceptional circumstance - most "joinders" involve claims of family members heard together pursuant to CRDD Rule 10(2).

It is not necessary, however, that claimants whose cases are to be joined must have all arrived in Canada at the same time. One family member may have made a claim at an inland inquiry and the rest of the family may have made claims three weeks later when they arrived at a port of entry. All the claims may still be joined by the Refugee Division.

Joinder of cases is possible even where more than one counsel has been retained. Generally, where more than one counsel is involved, it becomes more difficult to conduct the hearing efficiently because each counsel is usually given an opportunity to question each witness. This is a factor to be taken into account in deciding whether cases ought to be joined. A conference held pursuant to CRDD Rule 20 may be useful in such cases.
 

4.5 PROCEDURE FOR JOINING CASES

Even where one claim is made inland and the other claim is made at a port of entry, the claims may be scheduled to be heard at the same time, pursuant to CRDD Rule 10(2). Often this type of joinder comes about as a result of a request by counsel for the claimants.

Where claims have been ordered to be joined by an ADC or Coordinating Member under CRDD Rule 10(1), the Registrar will give written notice of that order to the claimants and to the Minister, where the Minister is a party.
 

4.6 SEPARATING CASES UNDER RULE 10(3)

The panel hearing the claims has discretion under CRDD Rule 10(3) to order that claims joined by order of the ADC or CM under Rule 10(1) be heard separately. The panel would listen to arguments from counsel, on the record, at the start of the hearing. The RCO may have representations which would be of assistance to the panel.

As this would be an interlocutory decision ( i.e., a decision in the course of the hearing, not a decision on the final outcome), where there is a split decision on this issue by the panel, the decision of the presiding member governs [ CRDD Rule 29].

It would be appropriate for members to use their discretion under CRDD Rule 10(3) to order that the claims be heard separately where it appears that the testimony of one claimant may be harmful to the interests of another claimant. Cases should be joined where the claimants share a common interest, but not where a claimant is forced not only to support his or her own claim but also to dispute substantial evidence submitted by another claimant.

Discretion to separate cases should not be exercised, though, simply upon request of the claimants. The possibility of minor discrepancies in the claims should not ordinarily be sufficient reason to separate the claims. Claimants may perceive some benefit in delaying decisions on their claims. They may prefer to have several claims heard individually in order to prolong their stay in Canada or for some other reason, unrelated to whether their claims may be properly joined. Where good reasons can be given for showing that there may be some conflict of interest among the claimants (e.g., this may sometimes be the case where the claimants are divorced or estranged from each other) or that the issues are not really related, then the claims should be separated.
 

4.7 CONDUCT OF A JOINT HEARING

Each claimant has the same rights under the Act at a joint hearing as that person would have at an individual hearing. Each claimant, therefore, must be given the right to be represented by counsel, and have an opportunity to present evidence, cross-examine witnesses and make representations. As at any hearing, evidence and arguments that are repetitive may be restricted.

The presiding member should advise at the outset that a decision will be made concerning each claimant and that the evidence received may apply to some or all of the claims being heard.

The usual procedure for dealing with witnesses at a joint hearing is to have all participants finish questioning one witness before another witness is called to testify.

After all the evidence has been received, counsel for the claimants will make submissions on all the claims. The RCO will make any appropriate representations. The counsel may make further arguments in reply.

The decision and reasons must clearly identify the outcome of the hearing with respect to each claimant.
 

4.8 CLAIMS BY MEMBERS OF A FAMILY

Claims made by members of a family are scheduled to be heard together without an order being made by the ADC or CM [ CRDD Rule 10(2)].

Where the claims of family members are being heard together, before any substantive evidence is presented, the presiding member must ensure that these issues are covered with respect to each claimant:

1. Referral from a Senior Immigration Officer
2. Notice to Appear (listing all the claimants)
3. Personal Information Form ( PIF)
4. Interpreter
5. Designated Representative for Minor
6. Right to Counsel
7. Agreement of all to Proceed
8. Attendance of the Claimants

1) Notice To Appear: A Notice to Appear ( CRDD Rule 15) should have been provided to each claimant and to the Minister with respect to each claimant [ Immigration Act, s. 69.1(3)]. Notices regarding children may be delivered to a parent or guardian, but the children should be named in the Notice.

2) Referral from a senior immigration officer: Claims may be heard together even though the family members did not arrive in Canada at the same time. It is essential, however, that each claim has been referred to the Refugee Division following an eligibility determination by an SIO: that is the only way in which the Refugee Division has jurisdiction to determine a person's claim [ Immigration Act, s. 69.1(1)]. Children or other family members cannot be "added in" as claimants if they did not have their claims referred by an SIO.

3) Interpreter: The interpreter must be able to communicate with each claimant. The interpreter should therefore be given an opportunity to talk to each claimant before any substantial steps are taken at the hearing. The presiding member should then confirm that the interpreter is satisfied that the interpreter understands, and is understood by, each claimant and that all claimants are satisfied with the interpreter.

4) Designated Representative: Where a minor, that is, a person under the age of eighteen years, is a claimant, the Refugee Division must designate a person to represent the minor at the hearing [ Immigration Act, s. 69(4)]. Normally, a parent will be designated as representative. Chapter 10 of this Handbook discusses the role of the designated representative. The presiding member should state on the record who is being, or has been, designated as representative. One of the main roles of the designated representative is to decide who should be counsel. Thus, a parent who has been designated as representative should, as designated representative, confirm that any counsel who is representing that parent will also be acting as counsel for the children. Where appropriate, of course, the designated representative may ask for an adjournment to retain and instruct counsel for the children.

5) Counsel:Each claimant has the right to be represented by counsel [ Immigration Act, s. 69(1)]. The presiding member should confirm that any counsel who is present is representing each family member. This may be done by addressing counsel or the claimants. If the presiding member asks one of the spouses to confirm the selection of counsel, the other spouse should also be asked to confirm that selection. This procedure confirms that the claimants have equal rights at the hearing (even though the evidence might show that one claim is dependent on the other).

6) PIF: Claimants are required to complete a Personal Information Form ( PIF), described in CRDD Rule 14. The PIFs are useful in that they will draw attention to an item that might otherwise have been overlooked, such as whether a family member has a different country of nationality from the rest of the family or has an additional or different basis for a claim. On occasion, the PIF or PIFs filed might not contain information about all the family members. It is not always mandatory that the hearing recess or adjourn to have the additional PIFs completed, but it may sometimes be a good practice to do so . A few questions to counsel should assist the panel in deciding whether it would be worthwhile to have this done in the circumstances of the case.

7) Agreement to proceed: Family members rarely object to having their claims heard together. It is, however, the right of each claimant to seek an individual hearing. Before proceeding to receive evidence, the presiding member should explain that the panel will make a decision about the claim of each individual claimant, that the evidence adduced may be relevant to some or all of the claims, and that the testimony of one claimant or of any other witness may affect the outcome of the other claims. Once all of the explanations and other preliminary matters have been completed, the presiding member should ensure that all claimants are prepared to proceed on that basis.

8) Attendance of claimants: The Act provides that "…proceedings before the Refugee Division shall be held in the presence of the person who is the subject of the proceedings, wherever practicable" [ Immigration Act, s. 69(2)]. All adult claimants therefore must attend the hearing. It is normally not appropriate, even where counsel consents, to have the father or mother leave the hearing to attend to their small children, unless the hearing is recessed. Even though the basis for the claims may involve mainly one spouse, the other spouse may have comments on the evidence. A hearing may have to be postponed or adjourned so babysitting can be arranged, in order to avoid having young children disrupt the hearing. Young children, who are incapable of following the proceedings and who may be disruptive, should not attend in person; they are "in attendance" through the designated representative. It is advisable that the adult claimants and their counsel be made aware in advance of the hearing what the panel's expectation is with respect to the attendance of the child claimants. 4.9 APPLICATIONS BY THE MINISTER

Under s. 69.2(1) of the Immigration Act, the Minister may make an application for a determination that a person has ceased to be a Convention refugee.

Under s. 69.2(2) of the Immigration Act, the Minister may, with leave of the Chairperson, make an application to have a determination that a person is a Convention refugee reconsidered on the grounds of fraud.

CRDD Rule 10 allows an ADC or CM to order that the hearings in these types of applications be joined. Joinder of these applications should be considered on the same principles as discussed earlier with respect to joinder of the hearing of claims.

Appendix 4A - CRDD Rule 10:

Appendix 4B - Selected Case Law

1. Kassim, Wahida v. M.E.I. ( F.C.T.D., no. A-700-92), Wetston, September 9, 1993. (A joint hearing culminating in denial of refugee status in respect of one family member's claim need not preclude a positive finding in respect of the other, provided each claim is considered on its own merits.)
2. Retnem, Rajkumaar v. M.E.I. ( F.C.A., no. A-470-89), MacGuigan, Décary, Pratte (dissenting), May 6, 1992. Reported: Retnem v. Canada (Minister of Employment and Immigration) (1991), 13 Imm. L.R. (2d) 317 ( F.C.A.) ("Although it may often be appropriate to treat husband and wife claims identically, in this case … [t]here were some distinctive elements in the wife's case, and so the Board could not simply decide her case "for the same reasons" as her husband's")
3. Villalobos, Andrea Elizabeth Nunez v. M.C.I. ( F.C.T.D., no. IMM-2890-96), Teitelbaum, September 2, 1997. Reported: Villalobos v. Canada (Minister of Citizenship and Immigration), (1997) 40 Imm. L.R. (2d) 153 ( F.C.T.D.) (Joint claims of sisters, ages 20 and 19, were rejected on credibility. Their mother was in Canada, but her claim was not joined to theirs. Their father had obtained refugee status in Canada in 1986. (1) Failure to join the claims under Rule 10 was an inconsequential error of law: (i) it is doubtful that their case would have benefited from their mother's testimony, and (ii) they made no attempt to have her called as a witness. (2) CRDD reasonably found a lack of credibility based, inter alia, on the claimants' lack of interest in finding out the nature of their father's political activity. (3) Although the CRDD had the power to summon the father, the claimants never requested it to do so. Question certified on Rule 10. Application dismissed.)
4. Rabiei, Irag v. M.C.I. ( F.C.T.D., no. IMM-2565-95), Rouleau, May 31, 1996. ( CRDD granted the claimant's request to have his claim heard separately from the claim of his brother. The circumstances leading to the claims of the two brothers against Iran were not similar. The claimant further requested the panel to recuse itself, as it had knowledge, because of the original joinder, that in the PIF of the claimant's brother, the claimant's brother had failed to mention the claimant as his brother. The panel refused that request. The Court noted that there was a lengthy discussion by the CRDD with respect to the identity and the details of the brother's PIF. It held that the CRDD erred in not providing a new panel. "The differences between the applicant's and his brother's PIF might have caused the members to question the brothers' evidence.")

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