Category: Natural Justice

The Court set aside the refusal to grant an adjournment to unrepresented counsel: [18] According to the decision in Chohan v. Canada (Minister of Citizenship and Immigration), 2006 FC 390 at para. 13, the RPD is obliged to consider a request for an adjournment in a “principled way” having regard to the factors identified in section 48 of the RPD Rules. [19] In the present case, the only rationale for refusing the Applicant’s request for a postponement of the hearing is contained in an entry in the Tribunal Record as follows: Counsel agreed on Jan 27/09 to this date. Moreover, video has been set up already. [20] In the circumstances of this case, I am satisfied that the RPD committed a reviewable error in refusing the request by Counsel, on behalf of the Applicant for an adjournment, thereby compromising his ability to fully prepare to present his case.

The Court set aside the refusal of an H & C application holding that the officer erred by ignoring the evidence of similarly situated people when assessing risk: [33] In my view, the officer in the present case failed to properly analyze the evidence about Mrs. Mujib’s family who appear to be similarly situated individuals and who were granted protection. This evidence was put forward by the applicants.

The Court set aside a decision where the Member actively discouraged a corroborative witness. The tribunal found against the applicant on grounds of credibility. The court found a breach of natural justice noting: I agree with counsel for the Respondent that the IAD has the right to limit repetitive testimony, but not by effectively excluding witnesses who could offer evidence going to the central issues of the case. The place to control excessive or repetitive evidence on issues of controversy which are central or determinative is generally not at the entrance to the witness box, but once the witness is testifying – and even then the member must grant some latitude to ensure that all important matters are covered. The IAD can, of course, limit the scope of evidence by stipulating certain points that are not in dispute. In a case like this one where the credibility of the Applicant is clearly in issue and where the genuineness of a marriage is in doubt, the evidence of immediate family and close acquaintances is highly relevant and should be heard without reservation. Indeed, it is difficult to see how a matter such as this could be fairly determined after only two hours of evidence, particularly where Mr. Kamtasingh was self-represented and was initially intending to lead evidence from several witnesses. This was a situation where the duty to allow Mr. Kamtasingh to fully present his case was sacrificed for the desire for administrative efficiency. That is not a permissible trade-off:

The Court held that in the circumstances of the case incompetent counsel was a breach of natural justice.

The Court set aside a decision of the IRB where the tribunal refused to grant an adjournment to allow newly retained counsel to prepare

The court set aside a decision that the applicant was inadmissible on medical grounds. The applicant's had HIV and required prescription drugs whose cost could be covered by the ontario drug plan. They indicated that they would not access the plan. The court held that their intention to not access the plan was a relevant consideration and that the officer ought to have given the applicants' an opportunity to address any concerns about their plans.

The Court set aside an H & C decision finding a breach of fairness: "[25] The WHO document entitled “The World Health Organization Mental Health Atlas” shows global mental health resources remain inadequate. The document is a more technical than a Human Rights Report and is not commonly referred to. Moreover, the officer erred in finding that the WHO document seems to support the proposition that there is adequate level of mental health in St. Vincent. For instance, a survey in 192 countries shows a slight increase in the number of psychiatrists from 3.96 to 4.15 per 100,000 people worldwide. In comparison, the number of psychiatrists is 0.9 per 100,000 per population in St. Vincent. These data reveal that St. Vincent’s mental health resources available to citizen in St. Vincent can be below average. In the circumstances, the WHO document is a novel and a significant document and it was relied upon by the officer in his decision. Fairness dictates that the Applicant should have had the opportunity to make submissions with regard to the WHO document."

The Court set aside a decision rejecting a claim for refugee status. The Board denied natural justice by not disclosing a document it relied on to reject the claim. The Board erred in finding state protection when the state agents were the agents of persecution. Also the Board erred in finding no subjective fear given there was no credibility finding.

The Court held that there was an apprehension of bias as a result of a series of factors in the handling of a lead case for Hungarian Roma which undermined the fairness of the proceedings

The Court held that there was a minimal duty of fairness to a non permanent resident when the Minister decided whether or not to issue a direction and that the Minister did not have to consider humanitarian factors in the context of issuing a direction for criminality to a non permanent resident.