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5. SERVICE AND FILING 5. SERVICE AND FILING

5.1 INTRODUCTION

This chapter describes the situations where documents must be served and filed, the approved methods of service and filing, and the time limits for service and filing, as set out in the Immigration Act and the CRDD Rules.

The term "service" refers to (i) the Refugee Division delivering documents to the parties, and (ii) the parties delivering documents to each other.

The term "filing" refers to the act of the parties delivering documents to the Refugee Division. Documents may be filed with the Refugee Division by delivering them to a registry (office) of the Division or by handing them to a member during a hearing.

CRDD Rules 35, 36 and 37, regarding service and filing, are designed to protect the rights of the parties by requiring that proper notice be given to them and to help ensure that the Refugee Division operates efficiently.

5.2 REGISTRY AND THE REGISTRAR

The Immigration and Refugee Board is required to "establish one or more offices for the activities of the Refugee Division, each of which is to be known as a registry" [ CRDD Rule 3]. The registry is the place where a party files documents to give formal notice to the Refugee Division of the party's intentions, or to make formal requests or to confirm that the party has done a certain thing.

Registry offices of the Board have been established in Ottawa, Vancouver, Winnipeg, Calgary, Toronto and Montreal.

The Rules also provide that the IRB "shall designate a person to be registrar at each registry" [ CRDD Rule 4].

The Registrar supervises the activities in the registry office. It is through the Registrar that the Refugee Division, as a body, communicates with the parties. The Registrar has certain specific duties set out in the CRDD Rules regarding notifying the parties of the time and place for a hearing and of the decision rendered by the Refugee Division. The Registrar also has responsibility for some of the administrative services needed for Refugee Division proceedings. In each region, the Registrar has Deputy Registrars and Case Officers to assist in carrying out the tasks assigned to the Registrar under the Rules.
 

5.3 METHODS OF SERVICE

Under CRDD Rule 35, service of any document in the course of any proceeding under the Rules may generally be made by any of the following methods:

• personal service;
• prepaid regular mail;
• any mail service whereby the sender is provided with an acknowledgement of receipt (e.g., registered or certified mail); or
• fax (telephone transmission of a facsimile)

Where service cannot be effected by one of those means, the Chairperson may direct that service be effected by such means as will, to the extent possible, provide a party with the document and as will not likely cause injustice to any party.

A description of each of the methods of service mentioned in the Rules is given below:
 

5.3.1 Personal Service

Personal Service is effected by leaving a copy of a document with the person to be served. It is not necessary that the document actually be placed in the person's hand. It is sufficient if the document is brought to the attention of the recipient and the recipient has a general knowledge of its contents [see for example: Canadian-Dominion Leasing Corp. Ltd. v. Corpex Ltd., [1963] 2 O.R. 497 (Master)]. Thus, a person who is told what the nature of a document is, but who refuses to accept the document, cannot claim that the document was not properly and personally served if a copy is left where the person can get it.
 

5.3.2 Service by Mail

When prepaid regular mail is used as a method of service, the item must be sent with proper postage. Thus, an item returned "postage due" has not been properly served.

The " effective date" of service of prepaid regular mail is considered to be the seventh day after the date of mailing [ CRDD Rule 35(4)]. This is a presumption contained in the Rules, but a party may present evidence to show that the document was received on any other day or was not received at all. For example, a document mailed on a Tuesday would be considered "served" on the intended party on the following Tuesday, unless there was satisfactory proof that the document was received before or after that Tuesday, or was not received at all.

When registered mail is used, the sender is given a receipt at the time of mailing. Canada Post is able to trace the progress of the mail and keeps a record of its delivery. Registered mail often takes longer for delivery than ordinary first class mail because of the record-keeping involved at each stage of delivery.

The address for service must be complete and correct. The Federal Court of Appeal found that service was defective in Singh, Manjit v. M.E.I. (F.C.A., no. A-799-88), Hugessen, Heald, Mahoney, September 22, 1989. The Court stated in part:

5.3.3 Service by Fax

Under CRDD Rule 35(3), service may be made by fax, if the following requirements are met:

5.3.4 Service by Other Means

CRDD Rule 35(5) provides that where service cannot be effected by one of the usual means of service described above, the Chairperson may direct that service be effected by such means as will, to the extent possible, provide a party with the document and as will not likely cause injustice to any party.

In other circumstances, publishing a notice in a newspaper is often acceptable as an alternative form of service of a legal notice. However, because Refugee Division proceedings are normally held in camera, such publication would not normally be appropriate.
 

5.3.5 Proof of Service

After a party has served a document, the party is required to file proof of service at the registry. [ CRDD Rule 35(6)]. The CRDD Rules do not require that proof of service is made in any particular form. The party may use an affidavit of service as proof of service. The Federal Court form for an Affidavit of Service is set out as an appendix to this chapter.
 

5.4 METHODS OF FILING
 

5.4.1 Filing by Serving an Employee of the Registry

Where a document is to be filed at a registry, the document is served on an employee of the registry at which the file relating to the claim or application is held [ CRDD Rule 37(1)]. Therefore, a document may be filed at the registry by serving the document on an employee by means of personal service, ordinary mail, registered mail, fax or other approved method of service.
 

5.4.2 Date of Filing by Fax

The date of filing by fax is considered to be the date it is stamped received by the registry. CRDD Rule 35(2) reads:

 

5.5 OFFICIAL LANGUAGES

All documents submitted in the course of any proceeding (filed with the registry or presented at a hearing) which are not in either English or French must be accompanied by a certified correct translation, unless otherwise directed by the Refugee Division [ CRDD Rule 37(3)].
 

5.6 CRDD RULES ON SERVICE AND FILING OF DOCUMENTS
 

5.6.1 Service on Counsel

A copy of any document served on a party must also be served on that party's counsel, if any [ CRDD Rule 35(2)].

An exception is that when the senior immigration officer (SIO) serves the claimant with the blank Personal Information Form at the time the SIO refers the claim to the Refugee Division, the SIO does not also have to serve counsel with a blank PIF.

The parties are required to notify the Refugee Division of the name and address of any counsel and to advise of any changes thereto [ CRDD Rule 36].
 

5.6.2 List of Service and Filing Requirements

The following list contains a brief description of who is required to serve or file what documents, by what means, and within what time limits, in the various situations that arise under the Rules. Please examine the CRDD Rules for the full description of what is required in each situation.

 

1. Referral to the Refugee Division

    

   Rule 6(1)(c) SIO serves the claimant with the blank PIF

    

2. Cessation Applications

    

   Rule 7(2): Minister serves (i) a Notice of Application specifying the grounds and (ii) an affidavit setting out the facts, on claimant and counsel, and files the original documents and 2 copies thereof at the registry, with proof of service

   Rule 7(3): registrar serves parties with a Notice of Hearing, upon receipt of the Notice of Application filed under Rule 9(2)

    

3. Applications to Vacate

    

   Rule 7(2): Minister serves (i) a Notice of Application specifying the grounds and (ii) an affidavit setting out the facts, on claimant and counsel, and files the original documents and 2 copies thereof at the registry, with proof of service

   Rule 7(3): registrar serves parties with a Notice of Hearing, upon receipt of the Notice of Application filed under Rule 9(2)

    

4. Postponements and Adjournments

   Rule 13(1): postponement application may be made, in writing, before commencement of the hearing

   Rule 13(2): adjournment application may be made, in writing, before resumption of the hearing

    

5. Participation of the Minister

   Rule 8(1), (3): Minister serves on the claimant and files at the registry, at any stage of the proceedings, a Notice of Intention to take part in those proceedings

   Rule 9: Minister serves on the claimant and files at the registry copies of any documents and any statements of facts which the Minister intends to use at the hearing, unless the Minister has already provided this information at a pre-hearing conference

    

6. Conferences

    

   Rule 20: member or RCO shall forthwith after a conference file the minutes of any agreements reached at the conference and any documents admitted at the conference.

    

7. Personal Information Form

    

   Rule 14: claimant files three copies of the PIF, one being the original, within 28 days after being served with the blank PIF or within 35 days where the PIF is filed by mail

    

8. Proof of Service

    

   Rule 35(6): after a document has been served, proof of service must be filed

    

9. Official Languages

    

   Rule 37(3): documents submitted to the CRDD which are not in English or French must be accompanied by English or French translation, unless CRDD decides otherwise

    

10. Abandonment

     

    Rule 32(1): registrar serves a Notice of Hearing concerning the abandonment on parties and their counsel

     

11. Withdrawal

    Rule 33(1): party files written notice of withdrawal of claim or application or gives oral notice at the hearing, at any time before final disposition

    Rule 33(2): registrar sends written notice of the withdrawal to Minister, claimant and counsel, as case may be

     

12. Motions

     

    Rule 28(2), (3): applicant serves the motion on other party and counsel (stating concisely the law and arguments relied on) and a supporting affidavit (setting out the facts)

    Rule 28(5): other party may file a reply (stating concisely the law and arguments relied on) and an affidavit (setting out the facts), within 7 days

    Rule 28(7): applicant may file a response to the reply, within 7 days

     

13. Notice of Decisions

     

    Rule 30: registrar signs all notices of CRDD decisions and forthwith serves the Minister and the person concerned with a copy of such decisions

     

14. Applications for Public Hearings

5.7 EXTENDING TIME LIMITS (CRDD Rule 38)

The CRDD Rules contain a specific provision for extending any of the time limits mentioned in the Rules:

 

Therefore, in appropriate circumstances, a member may decide to give a claimant or the Minister more time to do something than is mentioned in the CRDD Rules. For example, Rule 28(5) permits a party to file a reply to a motion within seven days after being served with the motion. If the reply is filed within ten days rather than seven, there is usually no prejudice to the other party or any harm to the administration of the Refugee Division's business.

In the case of a more serious delay, the Refugee Division may properly refer to the time limit in the Rules and refuse to accept the reply. In all cases, the Division must seek a just determination of the proceedings by balancing the problems created by condoning a breach of the Rules against the need to deal fairly with a particular situation. Local conditions, distances, and appearance of good faith are factors which should be considered when assessing what effect the failure to meet the time requirements should have.

A Practice Notice "Timely Filing of Personal Information Forms (PIFs)", deals with extensions of time for filing a PIF. That Practice Notice, signed by the Chairperson of the Immigration and Refugee Board, and dated May 5, 1998, includes the following paragraphs:

Appendix 5A - CRDD Rules 35, 36, and 37

Appendix 5B - Affidavit of Service

When a question of how or when a document was served arises, an affidavit of service may be provided. The CRDD Rules do not require that any particular form be used for that purpose. Under the Federal Court Rules, 1998, an affidavit of service is made in the following form:
 

 

 

I, (full name and occupation of deponent), of the (City, Town, etc.) of (name) in the (County, Regional Municipality, etc.) of (name), SWEAR (or AFFIRM) THAT:  

1. On (date), at (time), I served (identify person served) with (identify the document served) leaving a copy with that person at (address where service was made).

 

2. I was able to identify the person by means of (state the means by which the person's identity was ascertained). 1. I served (identify person served) with (identify the document served) leaving a copy on (date), at (time) with a person (insert name if known) who appeared to be an adult member of the same household in which (identify person served) is residing at (address where service was made), and by sending a copy by regular mail (or registered mail) on (date) to (identify person served) at the same address.

2. I ascertained that the person was an adult member of the household by means of (State how it was ascertained that the person was an adult member of the household.).

1. On (date), at (time), I sent to (identify person served) by registered/ordinary mail a copy of (identify the document served).

2. On (date), I received the attached acknowledgement of receipt card/post office receipt bearing a signature that purports to be the signature of (identify person).

 

I served (identify party served) with (identify document served) by sending a copy by registered/ordinary mail on (date) to (name of solicitor), solicitor for the (identify party).

 

I served (identify party served) with (identify document served) by sending a copy by fax on (date) to (name of solicitor), solicitor for the (identify party), at (fax number).

 

1. I served (identify party served) with (identify document served) by sending a copy by (name of courier), a courier to (name of solicitor), solicitor for the (identify party), at (full address of place for delivery).

2. The copy was given to the courier on (date).

1. I served (identify party served) with (identify document served) by sending a copy by registered/ordinary mail/fax/courier on (date) to (full mailing address/fax number), the last address for service provided by (identify party) (or, where no such address has been provided:) the last known address of (identify party). 2. The copy was given to the courier on (date).

Sworn (or Affirmed) before me at 
the (City, Town, etc.) of (name)
in the (County, Regional Municipality,
etc.) of (name) on (date).

 

Appendix 5C - Selected Case Law

1. Canadian-Dominion Leasing Corp. Ltd. v. Corpex Ltd., [1963] 2 O.R. 497 (Master) (where the document to be served is brought to the attention of the person to be served and that person has a general knowledge of its contents, the service is proper)
2. Re Consiglio et al., [1971] 3 O.R. 798 (Master) (where the document to be served comes to the knowledge or into the possession of the person to be served either directly or indirectly from a third party then it may be found that there has been personal service)
3. Singh, Manjit v. M.E.I. (F.C.A., no. A-799-88), Hugessen, Heald, Mahoney, September 22, 1989 (the envelope containing the Notice did not include the first line of the proper address for service, which was "c/o [the applicant's sister]"; also, counsel was not served, as required by the Rules)
4. Singh, Sucha v. M.E.I. (F.C.A., no. A-847-88), Pratte, Urie, Stone, November 27, 1989 (record did not show service on counsel by registered mail as required by IAB Rules; although two Notices were sent to counsel, no evidence was adduced to show that they were received; proper proof of service must form part of the record)

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