Canadian Refugee Procedure/RAD Rules Part 3 - Rules Applicable to All Appeals

The text of Part 3 of the RAD Rules reads:

RAD Rules - Part 3

PART 3
Rules Applicable to All Appeals

RAD Rule 14 - Communicating with the Division

Communicating with the Division

Communicating with Division
14 All communication with the Division must be directed to the registry office specified by the Division.

Regarding RAD Rule 14, see the commentary to RPD Rule 2: Canadian Refugee Procedure/RPD Rule 2 - Communicating with the Division.

RAD Rule 15 - Change to contact information

Change to contact information
15 If the contact information of a person who is the subject of an appeal changes, the person must without delay provide the changes in writing to the Division and to the Minister.

Regarding RAD Rule 15, see the commentary to RPD Rule 4: Canadian Refugee Procedure/RPD Rules 3-13 - Information and Documents to be Provided#RPD Rule 4 - Claimant's contact information.

RAD Rule 16 - Counsel

Counsel

Retaining counsel after providing notice
16 (1) If a person who is the subject of an appeal retains counsel after providing a notice of appeal or a notice of intent to respond, as the case may be, the person must without delay provide the counsel’s contact information in writing to the Division and to the Minister.

Change to counsel’s contact information — person
(2) If the contact information of counsel for a person who is the subject of an appeal changes, the person must without delay provide the changes in writing to the Division and to the Minister.

Change to counsel’s contact information — Minister
(3) If the contact information of counsel for the Minister changes, the Minister must without delay provide the changes in writing to the Division and to the person who is the subject of the appeal.

Rule 16(2): A failure to copy the Minister on a change of counsel can be procedurally unfair

RAD Rule 16(2) provides that if the person who is the subject of the appeal retains new counsel, that person must without delay notify the Minister in writing. A failure to do so is potentially procedurally unfair and may justify setting aside the decision, as the Federal Court did in Canada v. Miller.

RAD Rule 17 - Declaration — counsel not representing or advising for consideration

Declaration — counsel not representing or advising for consideration
17 If a person who is the subject of an appeal retains counsel who is not a person referred to in any of paragraphs 91(2)(a) to (c) of the Act, both the person who is the subject of the appeal and their counsel must without delay provide the information and declarations set out in the schedule to the Division in writing.

RAD Rule 18 - Becoming counsel of record

Becoming counsel of record
18 (1) Subject to subrule (2), as soon as counsel for a person who is the subject of an appeal provides on behalf of the person a notice of appeal or a notice of intent to respond, as the case may be, or as soon as a person becomes counsel after the person provided a notice, the counsel becomes counsel of record for the person.

Limitation on counsel’s retainer
(2) If a person who is the subject of an appeal has notified the Division of a limitation on their counsel’s retainer, counsel is counsel of record only to the extent of the services to be provided within the limited retainer. Counsel ceases to be counsel of record as soon as those services are completed.

RAD Rule 19 - Declaration — Request to be removed as counsel of record

Request to be removed as counsel of record
19 (1) To be removed as counsel of record, counsel for a person who is the subject of an appeal must first provide to the person and to the Minister a copy of a written request to be removed and then provide the written request to the Division.

Proof request was provided
(2) The request provided to the Division must be accompanied by proof that copies were provided to the person represented and to the Minister.

Request — if date for proceeding fixed
(3) If a date for a proceeding has been fixed and three working days or less remain before that date, counsel must make the request orally at the proceeding.

Division’s permission required
(4) Counsel remains counsel of record unless the request to be removed is granted.

RAD Rule 20 - Removing counsel of record

Removing counsel of record
20 (1) To remove counsel as counsel of record, a person who is the subject of an appeal must first provide to counsel and to the Minister a copy of a written notice that counsel is no longer counsel for the person and then provide the written notice to the Division.

Proof notice was provided
(2) The notice provided to the Division must be accompanied by proof that copies were provided to counsel and to the Minister.

Ceasing to be counsel of record
(3) Counsel ceases to be counsel of record when the Division receives the notice.

RAD Rule 21 - Refugee Protection Division Record

Refugee Protection Division Record

Providing notice of appeal
21 (1) The Division must without delay provide a copy of the notice of appeal to the Refugee Protection Division after the appeal is perfected under rule 3 or 9, as the case may be.

Preparing and providing record
(2) The Refugee Protection Division must prepare a record and provide it to the Division no later than 10 days after the day on which the Refugee Protection Division receives the notice of appeal.

Content of record
(3) The Refugee Protection Division record must contain
(a) the notice of decision and written reasons for the decision that is being appealed;
(b) the Basis of Claim Form as defined in the Refugee Protection Division Rules and any changes or additions to it;
(c) all documentary evidence that the Refugee Protection Division accepted as evidence, during or after the hearing;
(d) any written representations made during or after the hearing but before the decision being appealed was made; and
(e) any audio or other electronic recording of the hearing.

Providing record to absent Minister
(4) If the Minister did not take part in the proceedings relating to the decision being appealed, the Division must provide a copy of the Refugee Protection Division record to the Minister as soon as the Division receives it.

The onus is on the appellant to include in their appeal record any documents that the Refugee Protection Division refused to accept as evidence, during or after the hearing, if the appellant wants to rely on the documents in the appeal

See: Canadian Refugee Procedure/RAD Rules Part 1 - Rules Applicable to Appeals Made by a Person Who Is the Subject of an Appeal#Rule 3(3)(c): The appellant's record must contain any documents that the Refugee Protection Division refused to accept as evidence, during or after the hearing, if the appellant wants to rely on the documents in the appeal.

RAD Rule 22 - Language of the Appeal

Language of the Appeal

Choice of language
22 (1) A person who is the subject of an appeal must choose English or French as the language of the appeal. The person must indicate that choice in the notice of appeal if they are the appellant or in the notice of intent to respond if they are the respondent.

Language — Minister’s appeals
(2) If the appellant is the Minister, the language of the appeal is the language chosen by the person who is the subject of the appeal in the proceedings relating to the decision being appealed.

Changing language
(3) A person who is the subject of an appeal may change the language of the appeal that they chose under subrule (1) by notifying the Division and the Minister in writing without delay and, if a date for a proceeding has been fixed, the notice must be received by their recipients no later than 20 days before that date.

See the commentary on the equivalent RPD rule: Canadian Refugee Procedure/RPD Rules 17-18 - Language of Proceedings.

RAD Rule 23 - Designated Representatives

Designated Representatives

Continuation of designation
23 (1) If the Refugee Protection Division designated a representative for the person who is the subject of the appeal in the proceedings relating to the decision being appealed, the representative is deemed to have been designated by the Division, unless the Division orders otherwise.

Duty of counsel to notify
(2) If the Refugee Protection Division did not designate a representative for the person who is the subject of the appeal and counsel for a party believes that the Division should designate a representative for the person because the person is under 18 years of age or is unable to appreciate the nature of the proceedings, counsel must without delay notify the Division in writing.

Exception
(3) Subrule (2) does not apply in the case of a person under 18 years of age whose appeal is joined with the appeal of their parent or legal guardian if the parent or legal guardian is 18 years of age or older.

Content of notice
(4) The notice must include the following information:
(a) whether counsel is aware of a person in Canada who meets the requirements to be designated as a representative and, if so, the person’s contact information;
(b) a copy of any available supporting documents; and
(c) the reasons why counsel believes that a representative should be designated.

Requirements for being designated
(5) To be designated as a representative, a person must
(a) be 18 years of age or older;
(b) understand the nature of the proceedings;
(c) be willing and able to act in the best interests of the person who is the subject of the appeal; and
(d) not have interests that conflict with those of the person who is the subject of the appeal.

Factors
(6) When determining whether a person who is the subject of an appeal is unable to appreciate the nature of the proceedings, the Division must consider any relevant factors, including
(a) whether the person can understand the reason for the proceeding and can instruct counsel;
(b) the person’s statements and behaviour at the proceeding;
(c) expert evidence, if any, on the person’s intellectual or physical faculties, age or mental condition; and
(d) whether the person has had a representative designated for a proceeding in a division other than the Refugee Protection Division.

Designation applies to all proceedings
(7) The designation of a representative for a person who is under 18 years of age or who is unable to appreciate the nature of the proceedings applies to all subsequent proceedings in the Division with respect to that person unless the Division orders otherwise.

Rule 23(7): Designation applies to all proceedings in the Refugee Appeal Division

Rule 23(7) specifies that the designation of a representative for a person who is under 18 years of age applies to all subsequent proceedings in the Refugee Appeal Division with respect to that person, unless the Division orders otherwise. A designated representative appointed by the RAD would not ordinarily establish such a relationship before another division, for example if the RAD remitted a matter to the RPD and had appointed a DR prior to that remittal. Instead, the fact that a person has had a representative designated for a proceeding in another division of the Board is simply one factor for the RPD to take account in such circumstances when determining whether the RPD should appoint a designated representative: Canadian Refugee Procedure/Designated Representatives#RPD Rule 20(5) - Factors for determining whether a claimant or protected person is unable to appreciate the nature of the proceedings.

End of designation — person reaches 18 years of age
(8) The designation of a representative for a person who is under 18 years of age ends when the person reaches 18 years of age unless that representative has also been designated because the person is unable to appreciate the nature of the proceedings.

Termination of designation
(9) The Division may terminate a designation if the Division is of the opinion that the representative is no longer required or suitable and may designate a new representative if required.

Designation criteria
(10) Before designating a person as a representative, the Division must
(a) assess the person’s ability to fulfil the responsibilities of a designated representative; and
(b) ensure that the person has been informed of the responsibilities of a designated representative.

Responsibilities of representative
(11) The responsibilities of a designated representative include
(a) deciding whether to retain counsel and, if counsel is retained, instructing counsel or assisting the represented person in instructing counsel;
(b) making decisions regarding the appeal or assisting the represented person in making those decisions;
(c) informing the represented person about the various stages and procedures in the processing of their case;
(d) assisting in gathering evidence to support the represented person’s case and in providing evidence and, if necessary, being a witness at the hearing;
(e) protecting the interests of the represented person and putting forward the best possible case to the Division; and
(f) informing and consulting the represented person to the extent possible when making decisions about the case.

Commentary

See the commentary on the equivalent RPD rule: Canadian Refugee Procedure/RPD Rule 20 - Designated Representatives.

RAD Rule 24 - Specialized Knowledge

Specialized Knowledge

Notice to parties
24 (1) Before using any information or opinion that is within its specialized knowledge, the Division must notify the parties and give them an opportunity to,
(a) if a date for a hearing has not been fixed, make written representations on the reliability and use of the information or opinion and provide written evidence in support of their representations; and
(b) if a date for a hearing has been fixed, make oral or written representations on the reliability and use of the information or opinion and provide evidence in support of their representations.

Providing written representations and evidence
(2) A party must provide its written representations and evidence first to any other party and then to the Division.

Proof written representations and evidence were provided
(3) The written representations and evidence provided to the Division must be accompanied by proof that they were provided to any other party.

Commentary

See the commentary on the equivalent RPD rule: Canadian Refugee Procedure/RPD Rule 22 - Specialized Knowledge.

RAD Rule 25 - Notice of Constitutional Question

Notice of constitutional question
25 (1) A party who wants to challenge the constitutional validity, applicability or operability of a legislative provision must complete a notice of constitutional question.

Form and content of notice
(2) The party must complete the notice as set out in Form 69 of the Federal Courts Rules or any other form that includes
(a) the party’s name;
(b) the Division file number;
(c) the specific legislative provision that is being challenged;
(d) the material facts relied on to support the constitutional challenge; and
(e) a summary of the legal argument to be made in support of the constitutional challenge.

Providing notice
(3) The party must provide
(a) a copy of the notice to the Attorney General of Canada and to the attorney general of each province of Canada, in accordance with section 57 of the Federal Courts Act;
(b) a copy of the notice to the Minister even if the Minister has not yet intervened in the appeal;
(c) a copy of the notice to the UNHCR, if the UNHCR has provided notice of its intention to provide written submissions, and to any interested person; and
(d) the original notice to the Division, together with proof that copies were provided under paragraphs (a) to (c).

Time limit
(4) Documents provided under this rule must be received by their recipients at the same time as the Division receives the appellant’s record, respondent’s record or the reply record, as the case may be.

Deciding of constitutional question
(5) The Division must not make a decision on the constitutional question until at least 10 days after the day on which it receives the notice of constitutional question.

Rule 25(3)(c): An "interested person" is a concept that normally only applies to three-member panels at the RAD

RAD Rule 25(3)(c) provides that a party must provide a copy of any notice of constitutional question to any interested person. The concept of an "interested person" is defined in RAD Rule 1 as "a person whose application to participate in an appeal under rule 46 has been granted". RAD Rule 46 is the rule that specifically governs three-member panels: Canadian Refugee Procedure/RAD Rules Part 3 - Rules Applicable to All Appeals#RAD Rule 46: Application by person to participate in three-member panel.

Commentary

For commentary, see: Canadian Refugee Procedure/RPD Rule 66 - Notice of Constitutional Question.

RAD Rule 26 - Conferences

Conferences

Requirement to participate at conference
26 (1) The Division may require the parties to participate at a conference to discuss issues, relevant facts and any other matter in order to make the appeal fairer and more efficient.

Information or documents
(2) The Division may require the parties to give any information or provide any document, at or before the conference.

Written record
(3) The Division must make a written record of any decisions and agreements made at the conference.

Commentary

For commentary, see the equivalent RPD rule: Canadian Refugee Procedure/RPD Rule 24 - Conferences.

RAD Rule 27 - Documents

Documents
Form and Language of Documents

Documents prepared by party
27 (1) A document prepared for use by a party in a proceeding must be typewritten, in a type not smaller than 12 point, on one or both sides of 216 mm by 279 mm (8 ½ inches x 11 inches) paper.

Photocopies
(2) Any photocopy provided by a party must be a clear copy of the document photocopied and be on one or both sides of 216 mm by 279 mm (8 ½ inches x 11 inches) paper.

List of documents
(3) If more than one document is provided, the party must provide a list identifying each of the documents.

Consecutively numbered pages
(4) A party must consecutively number each page of all the documents provided as if they were one document.

Commentary

For commentary, see the equivalent RPD rule: Canadian Refugee Procedure/RPD Rules 31-43 - Documents#RPD Rule 31 - How to provide documents.

RAD Rule 28 - Language of Documents

Language of documents — person
28 (1) All documents used by a person who is the subject of an appeal in an appeal must be in English or French or, if in another language, be provided together with an English or French translation and a declaration signed by the translator.

Language of Minister’s documents
(2) All documents used by the Minister in an appeal must be in the language of the appeal or be provided together with a translation in the language of the appeal and a declaration signed by the translator.

Translator’s declaration
(3) A translator’s declaration must include the translator’s name, the language and dialect, if any, translated and a statement that the translation is accurate.

Commentary

For commentary, see the equivalent RPD rules: Canadian Refugee Procedure/Documents#RPD Rule 32 - Language of Documents.

RAD Rule 29 - Documents or Written Submissions not Previously Provided

Documents or Written Submissions not Previously Provided

Documents or written submissions not previously provided — person
29 (1) A person who is the subject of an appeal who does not provide a document or written submissions with the appellant’s record, respondent’s record or reply record must not use the document or provide the written submissions in the appeal unless allowed to do so by the Division.

Application
(2) If a person who is the subject of an appeal wants to use a document or provide written submissions that were not previously provided, the person must make an application to the Division in accordance with rule 37.

Documents — new evidence
(3) The person who is the subject of the appeal must include in an application to use a document that was not previously provided an explanation of how the document meets the requirements of subsection 110(4) of the Act and how that evidence relates to the person, unless the document is being presented in response to evidence presented by the Minister.

Factors
(4) In deciding whether to allow an application, the Division must consider any relevant factors, including
(a) the document’s relevance and probative value;
(b) any new evidence the document brings to the appeal; and
(c) whether the person who is the subject of the appeal, with reasonable effort, could have provided the document or written submissions with the appellant’s record, respondent’s record or reply record.

Documents or written submissions not previously provided — Minister
(5) If, at any time before the Division makes a decision, the Minister, in accordance with paragraph 171(a.5) of the Act, submits documentary evidence or written submissions in support of the Minister’s appeal or intervention that were not previously provided, the Minister must provide the documentary evidence or written submissions first to the person who is the subject of the appeal and then to the Division.

Proof documents or written submissions provided
(6) The additional documents or written submissions provided to the Division under subrule (5) must be accompanied by proof that they were provided to the person who is the subject of the appeal.

Reply to Minister’s documents or written submissions
(7) The person who is the subject of the appeal may reply to the additional documents or written submissions in accordance with rule 5 with any modifications that the circumstances require.

In deciding whether to allow an application, the Division must consider any relevant factors, including those listed in Rule 29(4)

In deciding whether to allow an application under RAD Rule 29, the Division must consider any relevant factors, including, but not limited to, the three listed in RAD Rule 29(4). The RAD must consider all three criteria under subsection 29(4) of the RAD Rules, and cannot simply limit its analysis to one of the relevant factors, namely, whether the evidence could have been provided with the Appellants’ perfected record. While the list of factors to be considered in Rule 37(3) is not exhaustive, the use of the word “including” rather than the words “such as” before the list of factors indicates the intent that each of the factors included in the sub-rule be considered.  A failure to do so gives rise to a breach of procedural fairness.

RAD Rule 29 may apply even in cases where submissions are solicited on an issue by the RAD

RAD Rule 29(2) states that a person who wants to use a document or provide written submissions that were not previously provided must make an application. This is so even in cases where submissions are solicited by the RAD. In Gomez Guzman v. Canada, upon the reopening of the RAD’s offices following a closure due to the COVID-19 pandemic, the RAD wrote to the Applicants’ counsel giving 30 days to submit documents in support of the appeal which “[would] be accepted without an application.” The RAD letter further specified that “other requirements of Rule 29 and 110(4) continue to apply." The panel did not accept the evidence, concluding that it did not meet the requirements of RAD Rule 29. The court upheld this decision, concluding that the panel was right to apply Rule 29, despite the submissions having been invited by the Division.

Whether and how RAD Rule 29 applies to court-ordered redeterminations

RAD Rule 29(1) provides that a person who is the subject of an appeal who does not provide a document or written submissions with the appellant’s record, respondent’s record, or reply record must not use the document or provide the written submissions in the appeal unless allowed to do so by the Division. As such, the intent of this rule is that a person who is the subject of an appeal does not need to satisfy the requirements of RAD Rule 29 when they are originally providing their appellant's record, respondent's record, or reply record, but they must do so where they provide documents or written submissions afterwards.

A question can arise about how this rule should be interpreted in the case of a court-ordered redetermination of a file, as when a case is remitted by the Federal Court for reconsideration. The practice of the RAD is to send out a standard form letter regarding such cases which makes clear that the person who is the subject of the appeal may submit new evidence (subject to the statutory criteria thereon) and implicitly indicates that RAD Rule 29 does not apply provided that the evidence is received prior to the deadline specified in the letter:

Please be advised that any objections to the file content should be made in writing and any additional evidence should satisfy the admissibility requirements for new evidence (s. 110(4) of the Immigration and Refugee Protection Act and the criteria set out in MCI v. Singh, 2016 FCA 96), as well as be provided to every party and to the RAD no later than <date>. In instances where there was a RAD hearing, unless ordered to hold a new hearing by the Federal Court, the new panel may or may not decide to hold a new hearing.

See also:

• Canadian Refugee Procedure/RAD Rules Part 1 - Rules Applicable to Appeals Made by a Person Who Is the Subject of an Appeal#RAD Rule 3: Perfecting Appeal

• Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#The record on a court-ordered redetermination.

RAD Rule 30 - Providing a Document

Providing a Document

General provision
30 Rules 31 to 35 apply to any document, including a notice or request in writing.

RAD Rule 31 - Providing documents to RAD, RPD, Minister, and a person other than the Minister

Providing documents to Division
31 (1) A document to be provided to the Division must be provided to the Division’s registry office that is located in the same region as the Refugee Protection Division’s registry office through which the notice of decision under appeal was provided.

Providing documents to Refugee Protection Division
(2) A document to be provided to the Refugee Protection Division must be provided to the Refugee Protection Division’s registry office through which the notice of decision under appeal was provided.

Providing documents to Minister
(3) A document to be provided to the Minister must be provided to the Minister’s counsel.

Providing documents to person other than Minister
(4) A document to be provided to a person other than the Minister must be provided to the person’s counsel if the person has counsel of record. If the person does not have counsel of record, the document must be provided to the person.

RAD Rule 32 - How to provide document

How to provide document
32 A document may be provided in any of the following ways:
(a) by hand;
(b) by regular mail or registered mail;
(c) by courier;
(d) by fax if the recipient has a fax number and the document is no more than 20 pages long, unless the recipient consents to receiving more than 20 pages; and
(e) by email or other electronic means if the Division allows.

The Division allows documents to be provided by email and other electronic means

RAD Rule 32(e) provides that a document may be provided by email or other electronic means if the Division allows. The Division has a practice notice on Exchange of Documents through Canada Post epost Connect to the Refugee Appeal Division which so allows. The Practice Notice on Resumption of Time Limits at the Refugee Appeal Division (RAD) also provides that the Division accepts documents by email to the email addresses listed.

RAD Rule 33 - Application if unable to provide document

Application if unable to provide document
33 (1) If a party is unable to provide a document in a way required by rule 32, the party may make an application to the Division to be allowed to provide the document in another way or to be excused from providing the document.

Form of application
(2) The application must be made in accordance with rule 37.

Allowing application
(3) The Division must not allow the application unless the party has made reasonable efforts to provide the document to the person to whom the document must be provided.

RAD Rule 34 - Proof document was provided

Proof document was provided
34 (1) Proof that a document was provided must be established by
(a) an acknowledgment of receipt signed by the recipient or a statement of service, if the document was provided by hand;
(b) a confirmation of receipt if the document was provided by registered mail, courier, fax or email or other electronic means; or
(c) a statement of service if the document was provided by regular mail.

Statement of service
(2) For the purpose of paragraph (1)(a) or (c), a statement of service consists of a written statement, signed by the person who provided the document, that includes the person’s name and a statement of how and when the document was provided.

Statement – unable to provide proof
(3) If a party is unable to provide proof that a document was provided in a way required by paragraph (1)(a) to (c), the party must provide a written statement, signed by the party, that includes an explanation of why they are unable to provide proof.

For commentary, see the concomitant RPD Rule 34: Canadian Refugee Procedure/RPD Rules 31-43 - Documents#RPD Rule 34 - Obligation, process, and timeline for a party to disclose documents they want to use in a hearing.

RAD Rule 35 - When a document is considered received

When document received by division
35 (1) A document provided to the Division or to the Refugee Protection Division is considered to be received on the day on which the document is date-stamped by that division.

When document received by recipient other than division
(2) A document provided by regular mail other than to the Division or to the Refugee Protection Division is considered to be received seven days after the day on which it was mailed. If the seventh day is not a working day, the document is considered to be received on the next working day.

Extension of time limit — next working day
(3) When the time limit for providing a document ends on a day that is not a working day, the time limit is extended to the next working day.

For commentary, see the concomitant RPD Rule 41: Canadian Refugee Procedure/RPD Rules 31-43 - Documents#RPD Rule 41 - When documents are considered received.

RAD Rule 36 - Applications

Applications
General

General provision
36 Unless these Rules provide otherwise,
(a) a party who wants the Division to make a decision on any matter in a proceeding, including the procedure to be followed, must make an application to the Division in accordance with rule 37;
(b) a party who wants to respond to the application must respond in accordance with rule 38; and
(c) a party who wants to reply to a response must reply in accordance with rule 39.

RAD Rule 37 - How to Make an Application

How to Make an Application

Form of application and time limit
37 (1) Unless these Rules provide otherwise, an application must be made in writing and without delay.

Oral application
(2) If a date for a hearing has been fixed, the Division must not allow a party to make an application orally at the hearing unless the party, with reasonable effort, could not have made a written application before that date.

Content of application
(3) Unless these Rules provide otherwise, in a written application, the party must
(a) state the decision the party wants the Division to make;
(b) give reasons why the Division should make that decision; and
(c) if there is another party and the views of that party are known, state whether the other party agrees to the application.

Affidavit or statutory declaration
(4) Unless these Rules provide otherwise, any evidence that the party wants the Division to consider with a written application must be given in an affidavit or statutory declaration that accompanies the application.

Providing application to other party and Division
(5) A party who makes a written application must provide
(a) to any other party, a copy of the application and a copy of any affidavit or statutory declaration; and
(b) to the Division, the original application and the original of any affidavit or statutory declaration, together with proof that a copy was provided to any other party.

RAD Rule 37(4): The requirement to submit an affidavit or statutory declaration under RAD Rule 37(4) has been waived

The Practice Notice: Exchange of documents through Canada Post epost Connect™ to the Refugee Appeal Division states that the RAD will not require a signed affidavit or statutory declaration to accompany an application under Rule 37 if it is submitted electronically. Furthermore, the Refugee Appeal Division: Practice Notice on the temporary waiving of rules for submitting documents during the COVID-19 pandemic provides that the RAD will not require an​ appellant's records to be signed, nor will it require a signed affidavit or statutory declaration to accompany an application under Rule 37. The rationale for this is that "given the continued presence of COVID-19, the RAD will continue to encourage electronic communication with the division and promote physical distancing by removing the requirement in the rules for signatures on documents and RAD forms submitted in support of an appeal."

RAD Rule 38 - How to Respond to a Written Application

How to Respond to a Written Application

Responding to written application
38 (1) A response to a written application must be in writing and
(a) state the decision the party wants the Division to make; and
(b) give reasons why the Division should make that decision.

Evidence in written response
(2) Any evidence that the party wants the Division to consider with the written response must be given in an affidavit or statutory declaration that accompanies the response. Unless the Division requires it, an affidavit or statutory declaration is not required if the party who made the application was not required to give evidence in an affidavit or statutory declaration, together with the application.

Providing response
(3) A party who responds to a written application must provide
(a) to the other party, a copy of the response and a copy of any affidavit or statutory declaration; and
(b) to the Division, the original response and the original of any affidavit or statutory declaration, together with proof that a copy was provided to the other party.

Time limit
(4) Documents provided under subrule (3) must be received by their recipients no later than seven days after the day on which the party receives the copy of the application.

The requirement to submit an affidavit or statutory declaration under RAD Rule 38(2) has been waived

The Practice Notice: Exchange of documents through Canada Post epost Connect™ to the Refugee Appeal Division states that the RAD will not require a signed affidavit or statutory declaration to accompany an application under Rule 37 if it is submitted electronically. Given that RAD Rule 38(2) provides that an affidavit or statutory declaration is not required if the party who made the application was not required to give evidence in that form, and given that this requirement has been waived for all applications, it cannot be said that the requirement in RAD Rule 38(2) applies either.

RAD Rule 39 - How to Reply to a Written Response

How to Reply to a Written Response

Replying to written response
39 (1) A reply to a written response must be in writing.

Evidence in reply
(2) Any evidence that the party wants the Division to consider with the written reply must be given in an affidavit or statutory declaration that accompanies the reply. Unless the Division requires it, an affidavit or statutory declaration is not required if the party was not required to give evidence in an affidavit or statutory declaration, together with the application.

Providing reply
(3) A party who replies to a written response must provide
(a) to the other party, a copy of the reply and a copy of any affidavit or statutory declaration; and
(b) to the Division, the original reply and the original of any affidavit or statutory declaration, together with proof that a copy was provided to the other party.

Time limit
(4) Documents provided under subrule (3) must be received by their recipients no later than five days after the day on which the party receives the copy of the response.

RAD Rules 40-41 - Joining or Separating Appeals

Joining or Separating Appeals

Appeals automatically joined
40 The Division must join any appeals of decisions on claims that were joined at the time that the Refugee Protection Division decided the claims.

Application to join
41 (1) A party may make an application to the Division to join appeals.

Application to separate
(2) A party may make an application to the Division to separate appeals that are joined.

Form of application and providing application
(3) A party who makes an application to join or separate appeals must do so in accordance with rule 37, but the party is not required to give evidence in an affidavit or statutory declaration. The party must also
(a) provide a copy of the application to any person who will be affected by the Division’s decision on the application; and
(b) provide to the Division proof that the party provided the copy of the application to any affected person.

Time limit
(4) Documents provided under this rule must be received by their recipients,
(a) if the person who is the subject of the appeal is the applicant, at the same time as the Division receives the person’s notice of appeal, notice of intent to respond or reply record; or
(b) if the Minister is the applicant, at the same time as the Division receives the Minister’s notice of appeal, notice of intervention or reply.

Factors
(5) In deciding the application, the Division must consider any relevant factors, including whether
(a) the appeals involve similar questions of fact or law;
(b) allowing the application would promote the efficient administration of the Division’s work; and
(c) allowing the application would likely cause an injustice.

RAD Rule 42 - Proceedings Conducted in Public

Proceedings Conducted in Public

Minister considered party
42 (1) For the purpose of this rule, the Minister is considered to be a party even if the Minister has not yet intervened in the appeal.

Application
(2) A person who makes an application to the Division to have a proceeding conducted in public must do so in writing and in accordance with this rule rather than rule 37.

Oral application
(3) If a date for a hearing has been fixed, the Division must not allow a person to make an application orally at the hearing unless the person, with reasonable effort, could not have made a written application before that date.

Content of application
(4) In the application, the person must
(a) state the decision they want the Division to make;
(b) give reasons why the Division should make that decision;
(c) state whether they want the Division to consider the application in public or in the absence of the public;
(d) give reasons why the Division should consider the application in public or in the absence of the public; and
(e) include any evidence that they want the Division to consider in deciding the application.

Providing application
(5) The person must provide the original application and two copies to the Division. The Division must provide a copy of the application to the parties.

Response to application
(6) A party may respond to a written application. The response must
(a) state the decision they want the Division to make;
(b) give reasons why the Division should make that decision;
(c) state whether they want the Division to consider the application in public or in the absence of the public;
(d) give reasons why the Division should consider the application in public or in the absence of the public; and
(e) include any evidence that they want the Division to consider in deciding the application.

Minister’s notice
(7) If the Minister responds to a written application, the response must be accompanied by a notice of intervention in accordance with subrule 4(2), if one was not previously provided.

Providing response
(8) The party must provide a copy of the response to the other party and provide the original response and a copy to the Division, together with proof that the copy was provided to the other party.

Providing response to applicant
(9) The Division must provide to the applicant either a copy of the response or a summary of the response referred to in paragraph (13)(a).

Reply to response
(10) An applicant or a party may reply in writing to a written response or a summary of a response.

Providing reply
(11) An applicant or a party who replies to a written response or a summary of a response must provide the original reply and two copies to the Division. The Division must provide a copy of the reply to the parties.

Time limit
(12) An application made under this rule must be received by the Division without delay. The Division must specify the time limit within which a response or reply, if any, is to be provided.

Confidentiality
(13) The Division may take any measures it considers necessary to ensure the confidentiality of the proceeding in respect of the application, including
(a) providing a summary of the response to the applicant instead of a copy; and
(b) if the Division holds a hearing in respect of the appeal and the application,
(i) excluding the applicant or the applicant and their counsel from the hearing while the party responding to the application provides evidence and makes representations, or
(ii) allowing the presence of the applicant’s counsel at the hearing while the party responding to the application provides evidence and makes representations, on receipt of a written undertaking by counsel not to disclose any evidence or information adduced until a decision is made to hold the hearing in public.

Summary of response
(14) If the Division provides a summary of the response under paragraph (13)(a), or excludes the applicant and their counsel from a hearing in respect of the application under subparagraph (13)(b)(i), the Division must provide a summary of the representations and evidence, if any, that is sufficient to enable the applicant to reply, while ensuring the confidentiality of the proceeding having regard to the factors set out in paragraph 166(b) of the Act.

Notification of decision on application
(15) The Division must notify the applicant and the parties of its decision on the application and provide reasons for the decision.

RAD Rule 43 - Assignment of Three-member Panel

Assignment of Three-member Panel

Notice of order
43 (1) If the Chairperson of the Board orders a proceeding to be conducted by three Division members, the Division must without delay notify the parties — including the Minister even if the Minister has not yet intervened in the appeal — and the UNHCR in writing of the order.

Providing documents to UNHCR
(2) The Division must provide the UNHCR with a copy of the following documents at the same time that it provides notice of the order:
(a) the Refugee Protection Division record; and
(b) the notice of appeal, appellant’s record, notice of intent to respond, respondent’s record, reply record, Minister’s notice of intervention, Minister’s intervention record, if any, Minister’s reply, and Minister’s reply record, if any.

UNHCR’s notice to Division
(3) If the UNHCR receives notice of an order, the UNHCR may provide notice to the Division in accordance with subrule 45(1) of its intention to provide written submissions.

Time limit
(4) The Division may, without further notice to the parties and to the UNHCR, decide the appeal on the basis of the materials provided if a period of 15 days has passed since the day on which the Minister and the UNHCR receive notice of the order.

RAD Rule 44 - These Rules apply to UNHCR and Interested Persons

UNHCR and Interested Persons

Rules applicable to UNHCR and interested persons
44 These Rules, with the exception of rules 25 (notice of constitutional question) and 47 to 49 (withdrawal, reinstatement, reopening), apply to the UNHCR and interested persons with any modifications that the circumstances require.

Interested person is a term defined in RAD Rule 1

See: Canadian Refugee Procedure/RAD Rule 1 - Interpretation and Definitions#Interested Person.

RAD Rule 45 - UNHCR providing written submissions in an appeal conducted by a three-member panel

Notice to Division
45 (1) The UNHCR must notify the Division in writing of its intention to provide written submissions in an appeal conducted by a three-member panel, and include its contact information and that of its counsel, if any.

Notice to person and Minister
(2) The Division must without delay provide a copy of the UNHCR’s notice to the person who is the subject of the appeal and to the Minister.

Providing written submissions to Division
(3) The UNHCR’s written submissions must be received by the Division no later than 10 days after the day on which the UNHCR provided the notice.

Limitation — written submissions
(4) The UNHCR’s written submissions must not raise new issues.

Length of written submissions
(5) The UNHCR’s written submissions must not be more than 30 pages long if typewritten on one side or 15 pages if typewritten on both sides.

Providing written submissions
(6) The Division must without delay provide a copy of the UNHCR’s written submissions to the person who is the subject of the appeal and to the Minister.

Response
(7) The person who is the subject of the appeal or the Minister may respond to the UNHCR’s submissions in writing.

Limitation — response
(8) A response must not raise new issues.

Length of response
(9) A response must not be more than 30 pages long if typewritten on one side or 15 pages if typewritten on both sides.

Providing response
(10) The response must first be provided to the person who is the subject of the appeal or to the Minister, as the case may be, and then to the Division.

Proof response provided
(11) The response provided to the Division must be accompanied by proof that it was provided to the person who is the subject of the appeal or to the Minister, as the case may be.

Time limit
(12) Documents provided under subrules (10) and (11) must be received by their recipients no later than seven days after the day on which the person who is the subject of the appeal or the Minister, as the case may be, receives the UNHCR’s submissions.

A three-member panel may accept written submissions from UNHCR

The above provisions of RAD Rule 45 relate to s. 110(3) of the IRPA: Canadian Refugee Procedure/110-111 - Appeal to Refugee Appeal Division#In the case of a matter that is conducted before a panel of three members, the RAD may accept documentary evidence and written submissions from UNHCR.

RAD Rule 46 - Application by person to participate in three-member panel

Application by person to participate
46 (1) Any person, other than the UNHCR, may make an application to the Division to be allowed to participate in an appeal conducted by a three-member panel. The person must make the application without delay and in accordance with this rule.

Form and content of application
(2) The application must be in writing and include
(a) the applicant’s name;
(b) an explanation of why the applicant wants to participate;
(c) the submissions the applicant wants to put forward and an explanation of how they are relevant to the appeal;
(d) an explanation of the differences between the applicant’s submissions and those of the person who is the subject of the appeal and the Minister;
(e) an explanation of how the applicant’s submissions may help the Division decide the appeal; and
(f) the contact information of the applicant and their counsel, if any.

Providing application
(3) The Division must provide a copy of the application to the person who is the subject of the appeal and to the Minister.

Response
(4) The person who is the subject of the appeal or the Minister may respond to the application in writing.

Limitation — response
(5) A response must not raise new issues.

Length of response
(6) A response must not be more than 30 pages long if typewritten on one side or 15 pages if typewritten on both sides.

Time limit
(7) A response must be received by the Division no later than 10 days after the day on which the person who is the subject of the appeal or the Minister, as the case may be, receives the application.

Notification of decision on application
(8) The Division must without delay notify the applicant, the person who is the subject of the appeal and the Minister in writing of its decision on the application.

Providing documents
(9) If the Division allows the application, it must without delay provide the interested person with a copy of the following documents as soon as they are available:
(a) the Refugee Protection Division record;
(b) the notice of appeal, appellant’s record, notice of intent to respond, respondent’s record, reply record, Minister’s notice of intervention, Minister’s intervention record, if any, Minister’s reply, and Minister’s reply record, if any; and
(c) the written submissions of any other interested person and the UNHCR.

Limitation — written submissions
(10) The interested person’s written submissions must not raise new issues.

Length of written submissions
(11) The interested person’s written submissions must not be more than 30 pages long if typewritten on one side or 15 pages if typewritten on both sides.

Providing written submissions
(12) The interested person’s written submissions must first be provided to the person who is the subject of the appeal and to the Minister and then to the Division.

Proof written submissions provided
(13) The written submissions provided to the Division must be accompanied by proof that they were provided to the person who is the subject of the appeal and to the Minister.

Response
(14) The person who is the subject of the appeal or the Minister may respond to the written submissions in writing.

Limitation — response
(15) A response must not raise new issues.

Length of response
(16) A response must not be more than 30 pages long if typewritten on one side or 15 pages if typewritten on both sides.

Providing response
(17) The response must first be provided to the interested person, then to the person who is the subject of the appeal or to the Minister, as the case may be, and then to the Division.

Proof response provided
(18) The response provided to the Division must be accompanied by proof that it was provided to the interested person, and to the person who is the subject of the appeal or to the Minister, as the case may be.

Time limit
(19) Documents provided under subrules (17) and (18) must be received by their recipients no later than seven days after the day on which the person who is the subject of the appeal or the Minister, as the case may be, receives the interested person’s written submissions.

RAD Rule 47 - Withdrawal

Abuse of process
47 (1) For the purpose of subsection 168(2) of the Act, withdrawal of an appeal is an abuse of process if withdrawal would likely have a negative effect on the Division’s integrity. If the requirements set out in rule 7 or 13, as the case may be, for deciding an appeal on the basis of the materials provided have not been met, withdrawal is not an abuse of process.

Withdrawal on notice
(2) If the requirements set out in rule 7 or 13, as the case may be, for deciding an appeal have not been met, an appellant may withdraw an appeal by notifying the Division in writing.

Application to withdraw
(3) If the requirements set out in rule 7 or 13, as the case may be, for deciding an appeal have been met, an appellant who wants to withdraw an appeal must make an application to the Division in accordance with rule 37.

Withdrawal is not an abuse of process if the requirements set out in rules 7 or 13 have not been met

If the requirements set out in rule 7 or 13, as the case may be, for deciding an appeal on the basis of the materials provided have not been met, withdrawal is not an abuse of process. The requirements set out in rule 7 are that a period of 15 days has passed since the day on which the Minister received the appellant’s record, and the time limit for perfecting the appeal set out in the Regulations has expired. See RAD Rule 7: Canadian Refugee Procedure/RAD Rules Part 1 - Rules Applicable to Appeals Made by a Person Who Is the Subject of an Appeal#RAD Rule 7: Decision without further notice and/or RAD Rule 13: Canadian Refugee Procedure/RAD Rules Part 2 - Rules Applicable to Appeals Made by the Minister#RAD Rule 13: Disposition of an Appeal.

A Division may refuse to allow an applicant to withdraw from a proceeding if it is of the opinion that the withdrawal would be an abuse of process under its rules

Section 168(2) of the Act provides that a Division may refuse to allow an applicant to withdraw from a proceeding if it is of the opinion that the withdrawal would be an abuse of process under its rules. For more context, see the commentary to the RPD rule on withdrawal: Canadian Refugee Procedure/RPD Rule 59 - Withdrawal.

RAD Rule 48 - Reinstating a Withdrawn Appeal

Application to reinstate withdrawn appeal
48 (1) An appellant may apply to the Division to reinstate an appeal that was made by the appellant and was withdrawn.

Form and content of application
(2) The appellant must make the application in accordance with rule 37. If a person who is the subject of an appeal makes the application, they must provide to the Division the original and a copy of the application and include in the application their contact information and, if represented by counsel, their counsel’s contact information and any limitations on counsel’s retainer.

Documents provided to Minister
(3) The Division must provide to the Minister, without delay, a copy of an application made by a person who is the subject of an appeal.

Factors
(4) The Division must not allow the application unless it is established that there was a failure to observe a principle of natural justice or it is otherwise in the interests of justice to allow the application.

Factors
(5) In deciding the application, the Division must consider any relevant factors, including whether the application was made in a timely manner and the justification for any delay.

Subsequent application
(6) If the appellant made a previous application to reinstate an appeal that was denied, the Division must consider the reasons for the denial and must not allow the subsequent application unless there are exceptional circumstances supported by new evidence.

RAD Rule 49 - Reopening an Appeal

Reopening an Appeal

Application to reopen appeal
49 (1) At any time before the Federal Court has made a final determination in respect of an appeal that has been decided or declared abandoned, the appellant may make an application to the Division to reopen the appeal.

Form and content of application
(2) The application must be made in accordance with rule 37. If a person who is the subject of an appeal makes the application, they must provide to the Division the original and a copy of the application and include in the application their contact information and, if represented by counsel, their counsel’s contact information and any limitations on counsel’s retainer.

Documents provided to Minister
(3) The Division must provide to the Minister, without delay, a copy of an application made by a person who is the subject of an appeal.

Allegations against counsel
(4) If it is alleged in the application that the person who is the subject of the appeal’s counsel in the proceedings that are the subject of the application provided inadequate representation,
(a) the person must first provide a copy of the application to the counsel and then provide the original and a copy of the application to the Division, and
(b) the application provided to the Division must be accompanied by proof that a copy was provided to the counsel.

Copy of pending application
(5) The application must be accompanied by a copy of any pending application for leave to apply for judicial review or any pending application for judicial review.

Factor
(6) The Division must not allow the application unless it is established that there was a failure to observe a principle of natural justice.

Factors
(7) In deciding the application, the Division must consider any relevant factors, including
(a) whether the application was made in a timely manner and the justification for any delay; and
(b) if the appellant did not make an application for leave to apply for judicial review or an application for judicial review, the reasons why an application was not made.

Subsequent application
(8) If the appellant made a previous application to reopen an appeal that was denied, the Division must consider the reasons for the denial and must not allow the subsequent application unless there are exceptional circumstances supported by new evidence.

Other remedies
(9) If there is a pending application for leave to apply for judicial review or a pending application for judicial review on the same or similar grounds, the Division must, as soon as is practicable, allow the application to reopen if it is necessary for the timely and efficient processing of appeals, or dismiss the application.

Commentary

For commentary, see the equivalent RPD Rules: Canadian Refugee Procedure/RPD Rules 62-63 - Reopening a Claim or Application. See also section 168 of the Act: Canadian Refugee Procedure/Section 168 IRPA: Abandonment of proceeding.

Rule 49(6): The Division must not allow the application unless it is established that there was a failure to observe a principle of natural justice

The interpretation of this rule is similar to the concomitant RPD rule: Canadian Refugee Procedure/RPD Rules 62-63 - Reopening a Claim or Application. One difference relates to the largely paper-based RAD process, where the RAD has held that perfecting an appeal cannot be delayed for the purpose of gathering and translating new evidence because Rule 29 of the RAD Rules allows applicants to tender new evidence after an appeal has been perfected.

RAD Rules 50-51: Decisions

Decisions

Notice of decision
50 (1) When the Division makes a decision, other than an interlocutory decision, it must provide in writing a notice of decision to the person who is the subject of the appeal, to the Minister and to the Refugee Protection Division. The Division must also provide in writing a notice of decision to the UNHCR and to any interested person, if they provided written submissions in the appeal.

Written reasons
(2) The Division must provide written reasons for the decision, together with the notice of decision, if a hearing
(a) was not held under subsection 110(6) of the Act; or
(b) was held under subsection 110(6) of the Act and the decision and reasons were not given orally at the hearing.

Request for written reasons
(3) A request under paragraph 169(1)(e) of the Act for written reasons for a decision must be made in writing.

When decision of single member takes effect
51 (1) A decision, other than an interlocutory decision, made by a single Division member takes effect
(a) if made in writing, when the member signs and dates the reasons for the decision; and
(b) if given orally at a hearing, when the member states the decision and gives the reasons.

When decision of three-member panel takes effect
(2) A decision, other than an interlocutory decision, made by a panel of three Division members takes effect
(a) if made in writing, when all the members sign and date their reasons for the decision; and
(b) if given orally at a hearing, when all the members state their decision and give their reasons.

The RAD can issue amended decisions

The RAD can issue amended decisions; this is generally done to correct clerical errors. See the following RPD rule: Canadian Refugee Procedure/RPD Rules 62-63 - Reopening a Claim or Application#What jurisdiction does the Board have to reopen a decision that it has reached?.

Rule 50(2)(b) provides that a decision and reasons may be given orally, but this is not allowed by the statute for non-interlocutory decision

Rule 50(2)(b) provides that where the RAD holds a hearing, it may provide a decision and reasons for that decision orally at the hearing and that doing so obviates the need to provide written reasons. However, s. 169(c) of the Act provides that all decisions of the Refugee Appeal Division must be rendered in writing: Canadian Refugee Procedure/Decisions and Reasons. To the extent of inconsistency between this provision of the rules and the statute, s. 169 of the statute is controlling. As such, non-interlocutory RAD decisions may not be provided orally. It appears that this provision in the rules reflects an earlier version of the Act which had allowed oral reasons to be provided, and it was not updated when the Act was amended to preclude that. However, it could also be read as only applying to interlocutory decisions provided during a RAD hearing.

RAD Rules 52-53: General Provisions

General Provisions

No applicable rule
52 In the absence of a provision in these Rules dealing with a matter raised during the proceedings, the Division may do whatever is necessary to deal with the matter.

Powers of Division
53 The Division may, after giving the parties notice and an opportunity to object,
(a) act on its own initiative, without a party having to make an application or request to the Division;
(b) change a requirement of a rule;
(c) excuse a person from a requirement of a rule; and
(d) extend a time limit, before or after the time limit has expired, or shorten it if the time limit has not expired.

Failure to follow rules
54 Unless proceedings are declared invalid by the Division, a failure to follow any requirement of these Rules does not make the proceedings invalid.