Scheduling Of Appeal Hearings
The Appeal Division has experienced delays in completing hearings and incurred substantial cost in postponing and rescheduling hearings which do not proceed on the original date set for hearing. Loss of hearing room time due to avoidable postponements and adjournments means that the cases of parties who are awaiting a hearing are further delayed.
The Appeal Division has a duty to the parties and to the public to ensure that pending appeals are dealt with expeditiously. To this end, and in keeping with its case management initiative, the Appeal Division expects the cooperation of all parties and their counsel in complying with the following directives relating to the scheduling of appeal hearings:
GENERAL PRINCIPLES
The Appeal Division generally schedules hearings on the consent of the parties. The Appeal Division seeks to accommodate parties and their counsel by giving them a reasonable amount of time to prepare appeals, and by scheduling appeals at times when parties and their counsel are available. However, there are limits to this principle, particularly where parties are seeking to delay the hearing of an appeal or have not been diligent in preparing for the appeal. After considering the positions expressed by the parties, it is the Appeal Division, and not the parties, which will ultimately determine what constitutes a reasonable length of time to retain and instruct counsel, what constitutes a reasonable length of time to prepare an appeal, and when cases will be heard.
1. ALL CASES ARE TO BE SCHEDULED THROUGH PERSONAL APPEARANCE AT ASSIGNMENT COURT UNLESS OTHERWISE DIRECTED
To give parties a voice in scheduling cases and to enable the Appeal Division to evaluate the position of the parties,
all cases will be scheduled through personal appearance by parties or their counsel at Assignment Court, unless the Appeal Division directs otherwise. The Appeal Division may not require scheduling through personal appearance in those regions where the volume of cases does not warrant such a practice for the Appeal Division to control its process.
Personal appearance of the parties at Assignment Court is necessary for a member of the Appeal Division to assess the readiness of a case. The Appeal Division will no longer initiate telephone contact to schedule hearings. Personal appearance can only be dispensed with in cases where parties represented by counsel are ready to proceed to hearing, are prepared to set a hearing date and will expressly confirm that they are ready for hearing. In such cases, only where
counsel initiates a telephone request to be removed from the Assignment Court list and where a clerk of the Appeal Division scheduling unit has confirmed that all parties are ready to proceed and that a hearing date can be set will the case be removed from the Assignment Court list. If the criteria regarding readiness are not met, the scheduling unit does not have the authority to remove the case from the Assignment Court list.
2. COUNSEL WHO SET HEARING DATES HOLD THEMSELVES OUT AS BEING RETAINED TO APPEAR AT THE HEARING
Persons acting as counsel when setting a hearing date will be regarded by the Appeal Division as retained by a party for the purpose of appearing as counsel at the hearing.
The Appeal Division does not recognize counsel as being "partially retained" or "insufficiently retained". Counsel is either retained for the purpose of representing a client at a hearing or not. Counsel who set a hearing date will be regarded by the Appeal Division as retained, and will be treated as counsel of record in accordance with the
Immigration Appeal Division Rules.
3. CASES WILL NOT BE SCHEDULED AT THE REQUEST OF PARTIES WHERE THOSE CASES ARE NOT READY FOR HEARING
The Appeal Division will only set hearing dates at the request of parties where cases are ready to be heard. It will not set hearing dates where cases are not ready to proceed to hearing.
Needless postponement requests are made and resources wasted by the practice of setting hearing dates without ensuring that the process of gathering evidence will have been completed sufficiently in advance of the date of hearing to ensure compliance with the disclosure requirements of the
Immigration Appeal Division Rules, and that witnesses will be available on the date of hearing. Parties and counsel are directed to set hearing dates only where they have done or will have done everything within their control to ensure that cases will be ready for hearing
on the date set for hearing.
4. THE APPEAL DIVISION MAY SET A HEARING DATE WHERE THE PARTIES HAVE BEEN GIVEN A REASONABLE TIME TO PREPARE, REGARDLESS OF WHETHER OR NOT THE CASE IS READY FOR HEARING
The parties are prevented from setting a case for hearing before it is ready to be heard, but the Appeal Division may nonetheless do so in cases where the parties have a reasonable opportunity to prepare.
There are instances where one or both of the parties seek to delay the hearing or have not been diligent in preparing for the appeal. In order to retain control over its process, the Appeal Division may set a case for hearing where the parties have a reasonable opportunity to prepare for the hearing.
5. REVIEW BY THE MINISTER OF MEDICAL INADMISSIBILITY APPEALS
Where an appellant in a medical inadmissibility appeal seeks to have the Minister review new medical evidence for the purpose of determining whether a finding of medical inadmissibility will be maintained by the Minister, the appellant must confirm that the Minister has been served with
all the medical evidence that the appellant is relying on for that review before the Appeal Division will consider setting a hearing date.
Appellants frequently serve new medical evidence on counsel for the Minister in an attempt to resolve an appeal without the need for a hearing. The Minister may be willing to review the medical evidence and, if so, will require time in order to consult medical experts. This often results in the postponement of a date already set for hearing and wastes hearing room time.
The outcome of this review process may make it unnecessary to hold an appeal hearing at all. Accordingly, in all medical inadmissibility appeals where the appellant is seeking a review by the Minister, the appellant must confirm to the Appeal Division and the Minister that all medical evidence being relied upon for the review has been served on the Minister, prior to a hearing date being set. In those cases where the appellant is
not seeking a review by the Minister, the appellant must confirm to the Appeal Division and the Minister that no such review is being sought, before a hearing date will be set.
Where, due to a lack of early available hearing dates, a strict adherence to this requirement would unduly postpone the scheduling of a hearing, and thereby undermine the efficiency of the scheduling process, the Appeal Division may exercise its discretion to dispense with this requirement.
Dated at Ottawa the 6th day of November, 1997.
Original signed by:
Nurjehan Mawani
Chairperson
Immigration and Refugee Board