Canadian Refugee Procedure/RPD Rule 65 - Abandonment

The RPD may declare a claim to be abandoned. A determination that a claim has been abandoned means that the claimant is "in default in the proceedings", per s. 168 of the Act. Most declarations of abandonment occur because a claimant failed to complete and submit a BOC. However, a significant number of declarations of abandonment also occur after a claimant fails to appear for a hearing. For practical purposes, the declaration that a claim has been abandoned has the same consequences for the claimant as a determination that the claimant is not a Convention refugee.

Subsection 168(1) of the Act

The relevant provision of the IRPA reads:

Abandonment of proceeding
168 (1) A Division may determine that a proceeding before it has been abandoned if the Division is of the opinion that the applicant is in default in the proceedings, including by failing to appear for a hearing, to provide information required by the Division or to communicate with the Division on being requested to do so.

The Board should produce written reasons for its determination that a claim has been abandoned

The Board states that, as a decision on abandonment may be reviewed by the Federal Court, therefore complete records of the actions of the Refugee Division and the reasons for those actions must be kept. For a discussion of the obligation to produce written reasons for the abandonment of a claim, see: Canadian Refugee Procedure/RPD Rules 67-68 - Decisions#The Board should provide written reasons for a determination that a claim has been abandoned

A claim is not automatically abandoned upon a claimant's departure from Canada

The Federal Court has noted that, all things being equal, a refugee claim is not automatically abandoned when a claimant leaves Canada. Instead, it should only be considered abandoned when the IRB makes a decision to that effect pursuant to section 168 of IRPA. Even where a claimant is outside of Canada, the Division may have jurisdiction regarding a claim that is properly before it. That said, there will be circumstances where the reason why an individual is outside of Canada indicates that their refugee claim has been extinguished, for example the Ontario Court of Appeal has accepted that the execution of a removal order under subsection 40(3) of Ontario’s Childrens Law Reform Act extinguishes a refugee claim. However, the Board states that the fact that a claimant may have left the country is simply information to take into account and put on the record when making a decision about abandonment. Indeed, the former Immigration Act used to have a specific provision mandating a negative decision where both members were of the view that a person had, "since making the claim, visited the country that the person claims to have left, or outside of which the person claims to have remained, by reason of fear of persecution".

In Sabet v. Canada, a mother testified that her son, the minor claimant, was not at the hearing because he had been abducted by his father and that the police were investigating. The Division declared the minor claimant’s claim to have been abandoned, concluding that he was living in the U.S. and that he would not be able to attend the hearing in the near future. The Court set this decision aside, holding that the Division had failed to consider the relevant factor that the minor claimant had been abducted and had not left Canada willingly.

See also: Canadian Refugee Procedure/RPD Rule 53 - Changing the Location of a Proceeding#The Division has the jurisdiction to conduct a hearing even if a claimant departs from Canada.

Decisions about abandonment may not be appealed to the Refugee Appeal Division

Decisions regarding abandonment are not eligible for appeal to the RAD, but such decisions may be judicially reviewed. For an example of such a direct judicial review of an RPD abandonment decision that was considered by the court, see Singh v. Canada.

A Division may determine that any proceeding before it has been abandoned, not just a refugee claim

Section 168 of the IRPA provides that a Division may determine that a proceeding before it has been abandoned. The term "proceeding" in the Act and Rules is interpreted broadly to include, for example, pre-hearing applications and Minister's applications to cease protection: Canadian Refugee Procedure/RPD Rule 1 - Definitions#Commentary on the definition of "proceeding".

RPD Rule 65(1) - Opportunity to Explain

The text of Rule 65 (concerning abandonment) reads:

Abandonment

Opportunity to explain
65 (1) In determining whether a claim has been abandoned under subsection 168(1) of the Act, the Division must give the claimant an opportunity to explain why the claim should not be declared abandoned,
(a) immediately, if the claimant is present at the proceeding and the Division considers that it is fair to do so; or
(b) in any other case, by way of a special hearing.

The Division shall schedule a hearing to explain why a claim should not be declared abandoned

The Board states that the Division should be sending a copy of the Notice of Abandonment Hearing to counsel even where counsel has stated that he or she has lost contact with the claimant, because the claimant just might "re-surface" and get in touch with that counsel. In any event, the Refugee Division should be able to show that it has taken all reasonable steps to notify the claimant of the proceedings. Upon proof on a balance of probabilities that a document was sent to an applicant, a rebuttable presumption arises that the applicant received it, and the applicant’s statement that it was not received, on its own, does not rebut the presumption. See further: Canadian Refugee Procedure/RPD Rules 31-43 - Documents#RPD Rule 41 - When documents are considered received.

Minor claimants must have a representative appointed for them prior to any decision on abandonment being made

As the Federal Court of Appeal commented in Stumf v. Canada, "the age of the minor claimant was apparent from the outset, and the matter of designating a representative for her should have been considered at least at the point at which abandonment proceedings were in contemplation.... The failure of the Board to do so was an error that vitiates the decision...".

This particular rule does not apply to situations where Minister's counsel does not appear for a cessation or vacation proceeding

In Singh v. Canada, the RPD noted that Rule 65 of the Rules, which only outlines a process for abandonment proceedings where a refugee claimant fails to appear, does not apply to a situation where the Minister’s counsel fails to appear. However, in such circumstances, the Division has broad discretion, including to postpone a hearing and send a written communication to the Minister inquiring into the reasons why they did not attend the hearing on their application.

RPD Rule 65(2) - When the BOC Abandonment hearing must be scheduled

Special hearing — Basis of Claim Form
(2) The special hearing on the abandonment of the claim for the failure to provide a completed Basis of Claim Form in accordance with paragraph 7(5)(a) must be held no later than five working days after the day on which the completed Basis of Claim Form was due. At the special hearing, the claimant must provide their completed Basis of Claim Form, unless the form has already been provided to the Division.

The timeline for when the Division must receive a BOC form set out in paragraph 7(5)(a) has been modified by practice notice

For details, see: Canadian Refugee Procedure/RPD Rules 3-13 - Information and Documents to be Provided#When a claimant must provide their BOC form.

This rule applies whether the BOC form is not supplied at all or whether the BOC form is only partially filled out

The Board provided the following commentary to the previous version of the RPD Rules, which applies equally to this wording:

The [Form must] be complete. If the Division does not receive the [Form] or if the [Form] is not complete, a special hearing will be held ... to decide whether the claim should be declared abandoned (Immigration and Refugee Protection Act, subsection 168(1)). The claimant will be given a chance to explain the delay or default and give reasons why the claim should not be declared abandoned.

RPD Rule 65(3) - When the special hearing for failure to appear must be scheduled

Special hearing — failure to appear
(3) The special hearing on the abandonment of the claim for the failure to appear for the hearing of the claim must be held no later than five working days after the day originally fixed for the hearing of the claim.

Where a claimant leaves the hearing early, should the Board schedule a resumption or commence the show cause abandonment?

Nanava v. Canada is a case which raises the question of when the Board should commence the abandonment procedure. Specifically, in that case a hearing before the RPD was commenced on March 2, 2017. At that hearing, Mr. Nanava became ill and fainted. Security personnel attended to him until emergency medical staff arrived. Mr. Nanava eventually regained consciousness and was transported to Mount Sinai Hospital in Toronto by the emergency medical staff. Counsel then applied to schedule a new sitting for the hearing of the claim to resume. The Member denied that request, and instead held that the proper procedure was that the claimant should demonstrate why he had not abandoned his claim by fainting and being taken to the hospital. The court commented on the Board's decision thusly:

I note that the RPD’s decision to embark upon a show cause hearing was also unreasonable. Given that Mr. Nanava and Counsel attended the scheduled March 2 hearing fully prepared to argue Mr. Nanava’s refugee claim, and that they were interrupted during the hearing by medical circumstances beyond Mr. Nanava’s control, it would have been appropriate to adjourn the substantive hearing to another date. In my view, Mr. Nanava was not in default in the proceedings. It follows that the conditions necessary to move into a show cause hearing were not met.

In contrast, in Liang v. Canada the claimant appeared at the hearing but was not prepared to proceed and refused to do so. In that case, the court found that it was proper for the abandonment process to be triggered when the claimant refused to proceed and left the hearing.

RPD Rule 65(4) - Factors to consider at an abandonment hearing

Factors to consider
(4) The Division must consider, in deciding if the claim should be declared abandoned, the explanation given by the claimant and any other relevant factors, including the fact that the claimant is ready to start or continue the proceedings.

The Board should consider whether the claimant has pursued their claim with diligence

When determining whether a claim has been abandoned, the test to be applied is whether the refugee claimant's conduct amounts to an expression of intention by that person that they do not wish to pursue (or has shown no interest in pursuing) their claim with diligence. It is said that the central consideration with respect to abandonment proceedings is whether the claimant’s conduct amounts to an expression of his or her intention to diligently prosecute his or her claim. Another way that this test has been phrased is that it "must determine whether [the claimant's] absences could reasonably be deemed an expression of his intention to no longer pursue his refugee claim with diligence, bearing in mind his obligation to provide a reasonable excuse for his failure to appear, as well as all of the other relevant factors which bear upon the matter". Subrule 65(4) directs the RPD to consider, in determining if a claim should be declared abandoned, "the explanation given by the claimant", whether the claimant is ready to start or continue the proceedings, as well as any other relevant factors. The RPD must decide whether the Applicant’s conduct showed that they did not wish or had no interest in pursuing their claim with diligence. The Court has held that a person whose safety is threatened in his or her country of origin and who is seeking the protection of a country of refuge is necessarily keen to comply with the legal framework that has been established for that purpose, and that it should not tolerate laxity. Furthermore, by the very wording of section 168(1) of the IRPA, the power to declare the abandonment of a proceeding is a discretionary power. The RPD is entitled to make such a declaration “if it is of the opinion” that the refugee protection claimant is in default in the proceedings. Regard may also be had to the way other Divisions of the Board interpret s. 168(1) of the IRPA, including as allowing them to declare a matter abandoned where the party has not complied with conditions imposed by the Division.

Factors that have been considered when assessing a claimant's diligence:

The explanation given by the claimant

• Whether inability to proceed is caused by counsel instead of the claimant: In Mayilvahanam v. Canada, the evidence was that the applicant wished to proceed but was newly left on his own by counsel and did not wish to proceed without counsel. The court held that it had been unreasonable for the Division to abandon the claim as "The Member did not take into account all the relevant facts but merely focused on the length of time that the application had been in the IRB system. The evidence clearly establishes that the Applicant wished to proceed. The only evidence of abandonment is abandonment by counsel of his client." In Tasdemir v. Canada, the court noted that counsel should have included evidence in their application acknowledging their own delay in submitting the request for an extension and their omission of important information related to the applicant’s efforts to move his refugee claim forward, both of which were critical to establishing that the applicant had not abandoned his claim. In contrast, in Singh v Canada a claim was abandoned because a complete BOC form was not provided to the Board, despite the claimant having been specifically advised of this deficiency and having been provided with time to remedy it, on the basis that the delict was the claimant's given the evidence before the tribunal that the claimant refused to attend at his counsel's office to remedy the deficiency, despite his counsel's entreaties to do so.
• Whether the claimant has provided credible testimony to explain the delay: In Parveen v. Canada, the panel found that the claimant's explanation of a medical reason for her failure to attend her hearing was not credible as her explanation was shifting, evasive, and inconsistent. The court accepted that this incredible testimony reasonably supported the Board's conclusion that the claimant was not pursuing her claim diligently. Similarly, in Konya v. Canada, the court concluded that the fact that the claimant had submitted a fraudulent medical certificate to attempt to obtain a postponement of the hearing supported the Board's conclusion that they were not pursuing their claim diligently. In contrast, in Nanava v. Canada the claimant's counsel appeared at the claimant's abandonment hearing with medical evidence to show cause for Mr. Nanava’s absence from the abandonment hearing. Even though this evidence did not meet all of the requirements of Rules 65(5)-(7), the court still held that it was relevant to the claimant's continuing intention to pursue his claim.
• Whether the claimant's conduct indicates a lack of intention to pursue the claim: The Board has stated that "Abandonment" includes both the act of failing to attend the hearing and the intention of not pursuing the claim. A claimant, for example, who is in hospital on the day of the hearing or who has a traffic accident on the way to the hearing has not abandoned the claim if the claimant’s intention was, at all times, to continue with the claim. In Singh v. Canada, the Federal Court emphasized that proof of service should be made part of the record in abandonment type cases. So, it is important for members to be able to state how they know that the document was sent to the claimant.

Attendance and scheduling history before the Division

• Whether the claimant and/or counsel have attended past proceedings before the Board: The Board's claimant guide instructs claimants that "the RPD may declare that your claim has been abandoned if you do not go to your refugee protection claim hearing or do not go to your special hearing on the abandonment of your claim, if you are required to do so." As such, whether or not the claimant is appearing at the Board's proceedings is a very relevant consideration when determining whether or not the claimant has abandoned their claim. In Nanava v. Canada, the fact that Mr. Nanava and Counsel were at Mr. Nanava’s scheduled refugee claim hearing on March 2, 2017 in order to pursue Mr. Nanava’s substantive claim (but were unable to proceed) and the fact that counsel attempted to reschedule the abandonment hearing to a different date when he would be available so that he could reiterate his client’s intent to pursue his claim and show cause for Mr. Nanava’s absence were factors that pointed towards the claimant's continuing interest in pursuing his claim. In contrast, counsel for the Minister argued that "the Member reasonably decided that Mr. Nanava had abandoned his claim after Mr. Nanava failed to show on two separate occasions, and failed to provide a proper medical certificate as evidence of his inability to attend." The court rejected that argument on the facts of that case, but in general this would appear to be a proper consideration to be balanced amongst others. In Ressam v. Canada, in contrast, the court upheld a decision to abandon a claim notwithstanding the claimant's explanation that he had made a mistake as to the date of the hearing.
• Whether past scheduling accommodations have been provided by the Board: For example, in Uandara v. Canada the Minister highlighted the number of accommodations that the claimants received, including two hearing postponements, the transferring of their file, and the scheduling of a videoconference. The court held that such factors were important in assessing the case: "For people who claim to fear returning to Namibia, the Applicants appear to have made little effort to establish their claim for refugee protection in Canada. The record suggests repeated accommodation by the Board and failures to appear by the Applicants that are more consistent with an attitude of avoidance than an attempt to assert a claim."
• Whether the Board has complied with all procedural requirements: The Board has stated that before declaring any claim to have been abandoned, members have to review the file carefully to be sure that all of the procedural safeguards in the Act and Rules have been followed.

Documents and information that the claimant has provided

• Whether the claimant has been diligent in keeping the Board up to date with their current and correct contact information: RPD Rule 4 requires claimants to provide any changes to their contact information in writing to the Division without delay: Canadian Refugee Procedure/Information and Documents to be Provided#Rule 4 - Claimant's contact information. The Board's claimant guide also instructs claimants about the importance of providing the Board with their current contact information, warning that "the RPD may declare that your claim has been abandoned if you do not provide your current and correct contact information." The court has held that a claimant who places himself in a position where communication is difficult or non-existent cannot plead lack of knowledge of what was occurring for excusing delay or a failure to appear. The court has also tended to be sympathetic where a claimant did not receive a notice from the Board as a result of a mistake, even where it is the claimant's mistake. Some examples follow:
  • A claimant should not be faulted for using the wrong form to supply updated contact information to the IRB: In Huseen v. Canada, the court commented on the Board's decision to abandon a claim in circumstances where a claimant had moved and had provided the Board with their updated contact information: "the Board had the opportunity and time to contact the [claimant] to inquire about any desire to abandon her claim. Indeed, the [location] change request form had her telephone number and the address at which the [claimant] could have been reached in Alberta. However, the Board did not do so, choosing instead to presume that she intended to have her claim abandoned, despite the message implicit in her change of venue request." The court held in that case that the Board had acted unreasonably.
  • A claimant should not generally be faulted where their counsel or interpreter was at fault in not providing updated contact information: The steps that the claimant took are relevant, whether or not updated contact information was actually received the Board. For example, in Andreoli v Canada, the claimant had told an interpreter about a change in address, and the interpreter had said they would advise the RPD but failed to do so; the resultant abandonment was held by the Court to be unfair in the circumstances. Similarly, in Kabende v. Canada, there was an administrative error on the part of claimant's counsel which meant that updated contact information did not reach the IRB; while noting that the Board could not be faulted, the court nonetheless allowed the claimant's application to reinstate their claim.
  • Leeway should be shown where a claimant has supplied updated contact information to IRCC or CBSA, even if not the IRB: In Karagoz v. Canada, the claimant had mistakenly provided his change of address to CBSA but not the IRB; in the result, the court allowed the judicial review of a refusal to open a claim that had been declared abandoned. In that case, the court held that the claimant demonstrated a continuing bona fide intention to pursue his claim and the only reason he did not receive his Notice to Appear was a mistake.

• Whether the claimant has complied with the Division's rules:
  • Whether the claimant has complied with the requirements of the RPD rules to provide information and forms: As the Board indicated in its public commentary to the previous version of the rules, "Where a party, whether represented by counsel or not, is not prepared to proceed, the Division may determine that the proceeding before it has been abandoned if the Division is of the opinion that the party is in default in the proceedings". The Irwin Law text Refugee Law notes that "although technically a claim may be declared abandoned for any default, including the failure to file documents, only the most serious defaults will generally lead to abandonment proceedings." As a result, where a party attends their hearing but is manifestly unready to proceed, for example without a complete BOC form that has been appropriately interpreted to them, then this is a factor that may rightfully point towards abandonment. Singh v. Canada was one such case in which the court upheld an IRB decision to declare a claim abandoned on the basis that the PIF was incomplete because it lacked an interpreter's declaration, despite the Board previously having advised the claimant of this deficiency and having provided time to rectify it. Similarly, RPD Member Kivlichan concluded in 2012 that a claim should be abandoned because, inter alia, required information about family members was not included in the PIF form.
  • Whether the claimant has complied with the Rules about providing medical documents, where applicable: In Parveen v. Canada, the court upheld a Board decision that this factor pointed towards the claimant having abandoned their claim, noting that the claimant lacked diligence in pursuing her claim by not presenting the required medical documentation. Even where a claimant's medical certificate does not comply with Rules 65(5)-(7), this is but one factor that the Board must consider in a global assessment of "any relevant factors". For example, the court commented as follows in Nanava v. Canada: "Under the circumstances, I am not satisfied the Member considered any factors other than the purported inadequacy of Mr. Nanava’s medical evidence. Such an approach is inconsistent with the broad language of subsection 65(4) of the Rules and with the jurisprudence."
• The extent to which the claimant has submitted documents to support the case: In Parveen v. Canada, the court upheld a Board decision that this factor pointed towards the claimant having abandoned their claim, noting that "While her claim has been pending for over six years, the Applicant has not submitted any supporting documents and has not given notice of any witnesses to be called. When asked why she had not submitted any supporting documents, the Applicant answered: 'They are … they are there. If you give me two to three weeks, yes, I can come along with those documents' In these circumstances, it was reasonable for the RPD to find that the Applicant was not ready to pursue her claim on the date originally scheduled or on the date of the show cause hearing." In contrast, in Nanava v. Canada the claimant's counsel appeared at the claimant's abandonment hearing with documents pertaining to a substantive part of Mr. Nanava’s refugee claim in order to reiterate his client’s intent to pursue his claim. The court held that this was a factor pointing towards the claimant's continuing interest in pursuing his claim with diligence.

Whether the claimant is ready to start or continue the proceedings

• The mere fact that the claimant is now willing and able to proceed is not, in itself, sufficient to ensure that the claim is not declared to have been abandoned. The focus of the abandonment decision should be on the reasons why the claimant failed to comply in a timely way with the requirements of the Act and the Rules.

RPD Rules 65(5)-(7) - Medical reasons

Medical reasons
(5) If the claimant’s explanation includes medical reasons, other than those related to their counsel, they must provide, together with the explanation, the original of a legible, recently dated medical certificate signed by a qualified medical practitioner whose name and address are printed or stamped on the certificate.

Content of certificate
(6) The medical certificate must set out
(a) the particulars of the medical condition, without specifying the diagnosis, that prevented the claimant from providing the completed Basis of Claim Form on the due date, appearing for the hearing of the claim, or otherwise pursuing their claim, as the case may be; and
(b) the date on which the claimant is expected to be able to pursue their claim.

Failure to provide medical certificate
(7) If a claimant fails to provide a medical certificate in accordance with subrules (5) and (6), the claimant must include in their explanation
(a) particulars of any efforts they made to obtain the required medical certificate, supported by corroborating evidence;
(b) particulars of the medical reasons included in the explanation, supported by corroborating evidence; and
(c) an explanation of how the medical condition prevented them from providing the completed Basis of Claim Form on the due date, appearing for the hearing of the claim or otherwise pursuing their claim, as the case may be.

This rule about providing medical certificates is waived

As per the Refugee Protection Division: Practice Notice on Procedural Issues, unless explicitly required by the RPD, where the RPD Rules contain a requirement to provide a medical certificate, this requirement as well as the requirement to explain why there is no medical certificate, is waived. However, a party may still present a medical certificate in support of an application if they wish. Furthermore, even though a medical certificate need not be provided, the same content that would ordinarily be expected in a medical certificate should nonetheless be provided, albeit just not in the form of a formal medical note.

Does the claimant's medical certificate comply with the requirements of Rule 65(5) and 65(6)?

Rule 65(6)(a): Does the medical certificate set out the particulars of the medical condition?

Rules 65(6) requires that a claimant provide a medical certificate which sets out the particulars of their medical condition, without specifying the diagnosis, that prevented the claimant from pursuing their claim. The Board should assess the sufficiency of the reasons offered in light of the test above, namely which the claimant is diligently pursuing their claim. So, for example, in Uandara v. Canada, the claimants, residing in Edmonton, provided a doctor’s note saying that the female Applicant “probably should not be flying on an airplane to Toronto at this time.” The court held that this would not explain why the claimants could not attend the hearing by videoconference given that the claimants had been advised that they did not need to travel to Toronto for the hearing, that their counsel was participating in the hearing by videoconference, and that the claimant were told that they could participate from Edmonton by videoconference. The court noted that "There is no explanation from the Applicants, or anyone else, as to why they did not ask to attend by videoconference. They simply informed the Board that they would not be attending the hearing and the doctor’s note they eventually provided only speaks to air travel." As such, this is an example of where the claimant's medical condition, even if accepted, did not indicate why the claimant was prevented from appearing for the hearing of the claim. This is an example of the way in which Rule 65(6)(a) requires a medical certificate, but then establishes a legal test for assessing whether the medical reasons offered are sufficient to explain the claimant's non-participation in the hearing.

Rule 65(6)(b): When will a medical certificate have adequately stated when the claimant is expected to be able to pursue their claim?

Rule 65(6)(b) indicates that a claimant must provide a medical certificate which sets out the date on which the claimant is expected to be able to pursue their claim. This issue arose in Guo v. Canada, the applicant’s hearing before the RPD was scheduled to take place on January 27, 2014. On January 23, 2014, applicant’s counsel requested that the hearing be postponed because the applicant was sick. In support of this request, counsel filed a letter from the applicant’s doctor dated January 23, 2014, indicating that the applicant: (i) had bronchitis and possibly hypertension, (ii) was prescribed antibiotics and cough syrup, and (iii) told his doctor that he had a fever on the night on January 22, 2014. The doctor's letter included a recommendation that the claimant stay home for one week. The RPD concluded that the claimant had abandoned his claim and that the medical note in question was deficient by failing to indicate the date on which the applicant was expected to be able to pursue the claim. On judicial review, the court concluded that the RPD acted unreasonably in so concluding. The court commented on this issue this way: "It follows that the end of that week indicates the date on which the applicant could be expected to be available. To ask for more seems pedantic." As such, panels of the Board should not adopt an excessive technical or pedantic approach to the application of this rule. In contrast, in Parveen v. Canada, the claimant submitted a prescription and blood test results, documents which did not explain when the claimant would be able to pursue her claim. The court upheld the Board's determination that these documents did not comply with the requirements of Rule 65.

If the claimant has not provided a medical certificate, have they met the requirements of Rule 65(7)?

Rule 65(7)(a): The claimant must provide particulars of any efforts they made to obtain the required medical certificate

A claimant is to provide a medical certificate that complies with the requirements set out in rules 65(5) and 65(6). If they do not do so, they must include in the explanation that they provide to the Board particulars of any efforts they made to obtain the required medical certificate, supported by corroborating evidence. Where they fail to do so, this will point against the claimant having sufficiently explained why they were nota able to attend their hearing and will point towards them having abandoned their claim. For example, in Parveen v. Canada, the claimant had not supplied the required medical certificate and "no explanation was submitted as to why the Applicant was unable to provide a medical certificate containing the required information in the form prescribed by subrules 65(5) and 65(6) of the RPD Rules." The court concluded that this supported the reasonableness of the Board's conclusion that the medical evidence offered was not sufficient to explain why the claimant had been unable to attend the hearing.

Rule 65(7)(c): The claimant must explain how their medical condition prevented them from pursuing their claim

The mere fact that the claimant has received some medical attention is insufficient to explain why they could not pursue their claim or attend at a hearing. In Parveen v. Canada, the claimant had provided a prescription and the results of a blood test, both dated February 15, 2018. The court held that "these documents do not explain why the Applicant was not able to attend on February 16, 2018". The Board held that the medical evidence offered was not sufficient to explain why the claimant had been unable to attend the hearing. The court concluded that this was a reasonable finding on the evidence.

How should the panel determine whether the medical reasons offered are sufficient?

The documents offered should include details which "explain why the [claimant] was not able to attend" their hearing. When will the medical documents offer a sufficient explanation? Some principles emerge from the caselaw:

• A panel of the Board should not second-guess a doctor's recommendations: In Guo v. Canada, the claimant's doctor had diagnosed the claimant with acute bronchitis and had recommended that he stay home for a week. The Board concluded that the claimant's information about his medical condition was not sufficient to substantiate that the claimant would have been unable to participate in the hearing. The court stated that it was "not satisfied that the situation required that the applicant go against his doctor’s recommendation". As such, where a doctor has provided a recommendation (in this case, to stay home) the Board should not second-guess that recommendation without good reason.
• Even where the technical requirements of the above rules on medical documents have not been complied with, this is just one factor to consider under 65(4) and should not automatically result in the claim being declared abandoned: For example, in Nanava v. Canada, the court commented that "the Member unreasonably fixated upon the technical deficiencies of Mr. Nanava's medical certificates and failed to consider other relevant factors in assessing whether Mr. Nanava had abandoned his claim. As noted above, such an approach is contrary to subsection 65(4) of the Rules and the jurisprudence. As a result, the Decision is unreasonable."
• The existence of a medical condition does not itself excuse a claimant from taking reasonable steps to proceed: In Fetni v. Canada, the claimant had asserted that he had memory problems and he presented a psychological report. The court found that it was not unreasonable for the CRDD to find that the claimant should have taken steps necessary to ensure he would not forget the hearing date.

RPD Rule 65(8) - When the Division must start or continue the proceedings if it decides not to declare the claim abandoned

Start or continue proceedings
(8) If the Division decides not to declare the claim abandoned, other than under subrule (2), it must start or continue the proceedings on the day the decision is made or as soon as possible after that day.

At what point should the Board conclude that a claimant is not late, but instead is not appearing for their hearing?

The Chairperson Guidelines 7 Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division state that "The hearing will begin promptly as scheduled. Participants must be present on time and ready to proceed by the scheduled start time. If a party or counsel appears within 15 minutes after the scheduled start time, the member will note the explanation for the late arrival on the record." The guidelines go on to state that "after 15 minutes, if it is a claimant who has not appeared, the member will either adjourn the hearing or the claimant will have to appear at a special hearing to explain why the claim should not be declared abandoned." The logic of this 15-minute presumption is bolstered by the fact that the Notice to Appear instructs claimants and counsel to arrive half an hour prior to the actual start time of the hearing (15 minutes in the case of virtual hearings), so if a party has not arrived 15 minutes after the start-time of the hearing, they are in that sense 45 (30) minutes late. Nonetheless, where a claimant advises the Board of their anticipated lateness or otherwise appears shortly afterwards, it may be possible for the Board to proceed nonetheless.

This rule supplants the following earlier guidance from the Board, which may nonetheless continue to have some persuasive authority:

Where there is no information available about the claimant’s failure to appear, it is usually practical to wait a while before initiating the abandonment process, as it may turn out that the claimant simply was late for the hearing. There is no rigid time limit which separates "being late" from "failing to appear at the time set for a hearing". Good judgment is called for in deciding whether to initiate abandonment proceedings in such a case.

Front-End Security Screening (FESS) considerations where a claim is not declared abandoned and will then proceed to hearing

The Board's Instructions Governing the Management of Refugee Protection Claims Awaiting Front-end Security Screening state that "Abandonment hearings may proceed notwithstanding that confirmation of security screening has not been received. Should a claimant successfully argue that their claim should not be declared abandoned, the matter will then be scheduled for hearing in accordance with these Instructions."

Statistics about abandonment

By region

Of all dispositions for principal claimants in the most recent year for which data are available (2018), about 6.3% of dispositions (claims being accepted, rejected, withdrawn, abandoned, etc.) were abandonments in each of the Central (Toronto) and Eastern (Ottawa and Montreal) regions, but only 2.1% of claims were abandoned in the Board's Western region, which runs from BC to Manitoba:

New System RPD Claims for Principal Claimants in 2018

Region	Abandoned Claims	Total Decisions	Abandonments as a Percentage of All Decisions
Central	482	7629	6.3%
Eastern	272	4273	6.3%
Western	47	2149	2.1%

By country

Claims from certain countries appear to have disproportionately high (e.g. India, Mexico) or low (e.g. Turkey, Iran) abandonment rates:

New System RPD Claims for Principal Claimants in 2018, Top 19 Countries with Most Abandonments

Country	Abandoned Claims	Total Decisions	Abandonments as a Percentage of All Decisions
India	156	430	36.3%
Mexico	116	437	26.5%
Romania	62	225	27.6%
Nigeria	54	1161	4.7%
Haiti	52	1573	3.3%
Somalia	44	468	9.4%
China	44	752	5.9%
Pakistan	17	569	3.0%
Czech Republic	13	47	27.7%
United States of America	11	73	15.1%
Colombia	11	257	4.3%
Eritrea	11	436	2.5%
Congo, Democratic Republic	10	191	5.2%
Hungary	9	269	3.3%
Jamaica	8	71	11.3%
Sri Lanka	8	130	6.2%
Iran	8	322	2.5%
Gambia	7	24	29.2%
Turkey	7	769	0.9%
Grand Total	801	14051	5.7%

By counsel

About half of all claimants that abandon their claims do not have counsel (398 out of 801 principal claims declared abandoned in 2018). In contrast, overall about 94% of claimants are represented in their new system proceedings before the Board. For example, of the 44 abandonment hearings held in British Columbia in 2013, claimants were represented by counsel at only 16 (or 36 percent). The rate at which claims were declared abandoned was almost twice as high for unrepresented claimants (21 out of 28, or 75 percent) than those who had counsel (7 out of 16, or 44 percent).

There are a number of hypotheses and explanations about why claimants without counsel are disproportionately likely to abandon their claims, including:

• The importance of a relationship of trust with counsel in encouraging vulnerable claimants to continue with the process: Part of this may relate to having a trusting relationship with counsel that guides the claimant through the process. In an academic research study, one lawyer interviewed commented on this issue as follows: "establishing a trusting relationship is more than just, you know, something to check off the list. It’s the foundation of your legal representation because vulnerable clients tend to drop off the map if they don’t trust their lawyer." Some lawyers note that "It’s very difficult for people who have low or little education to navigate a complex legal system." There are instances where claimants become overwhelmed and unable to continue the claims process without adequate supports; such claims may be withdrawn, or the claimants may simply disappear.
• Counsel may be unwilling to take cases with a low chance of success: In one UNHCR report, they note that "there is some controversy relating to statistics for Roma asylum seekers, but it is clear that the success rate is low for claimants from Hungary and that a high number have also abandoned (or withdrawn) their claims over the last couple of years. One may presume that implicit in the governmental view on the abandonment/withdrawal rate is that these claimants are not represented (i.e. legal counsel would presumably want to win cases they accept to represent)."
• Claimants may be denied legal aid based on an assessment of the merit of their claim: Another aspect is that claimants without counsel may be disproportionately likely to have been rejected by legal aid on the basis that their claim lacked merit, and thus they may be disproportionately likely to abandon their claim for reasons associated with likelihood of success, with on UNHCR report stating "it is likely that many unrepresented claimants were refused legal aid following a “chance of success” screening and that their claims may have been relatively weak or unfounded."
• Unrepresented claimants may be more likely to miss deadlines for submitting paperwork.