Canadian Refugee Procedure/RPD Rule 53 - Changing the Location of a Proceeding

RPD Rule 53 - Changing the Location of a Proceeding

The text of the relevant rule reads:

Changing the Location of a Proceeding

Application to change location
53 (1) A party may make an application to the Division to change the location of a proceeding.

Form and content of application
(2) The party must make the application in accordance with rule 50, but is not required to give evidence in an affidavit or statutory declaration.

Time limit
(3) Documents provided under this rule must be received by their recipients no later than 20 days before the date fixed for the proceeding.

Factors
(4) In deciding the application, the Division must consider any relevant factors, including
(a) whether the party is residing in the location where the party wants the proceeding to be held;
(b) whether a change of location would allow the proceeding to be full and proper;
(c) whether a change of location would likely delay the proceeding;
(d) how a change of location would affect the Division’s operation;
(e) how a change of location would affect the parties;
(f) whether a change of location is necessary to accommodate a vulnerable person; and
(g) whether a hearing may be conducted by a means of live telecommunication with the claimant or protected person.

Duty to appear
(5) Unless a party receives a decision from the Division allowing the application, the party must appear for the proceeding at the location fixed and be ready to start or continue the proceeding.

Commentary on the Rule 53(4) Factors

The IRB provides a specific form to make such applications, the Application to Change the Location of a Proceeding form. Waldman notes in his text that "The Rules confer a broad discretion on the Division to determine whether or not to grant the change of venue, and it is unlikely that the discretion will be interfered with by a reviewing court unless the Division acts arbitrarily." Past decisions have commented on the above factors thusly:

• (a) whether the party is residing in the location where the party wants the proceeding to be held:
  • Where a party has moved, this points to moving the proceedings: The instructions provided on the IRB website about these applications is that the Application to Change the Location of a Proceeding form "can be used by claimants who have moved or who intend to move, and who wish to have their proceeding held at a Refugee Protection Division (RPD) office in another city in Canada." As a result, the fact that a party is residing in the new location is a factor in favour of moving proceedings there.
  • An intent to move is also properly considered: Additionally, as per the instructions quoted supra, the Board has communicated that it is also appropriate for those who intend to move to bring such applications prior to doing so.
  • Location of counsel not generally an appropriate consideration: In contrast, where such applications have been made to move proceedings away from where an individual resides to another city where the individual's counsel resides, the fact that the individual concerned does not reside in the new city being proposed has been taken as a factor pointing against accepting the application. In interpreting its similar rule, the Immigration Appeal Division commented on this as follows: "I note that the appellant`s representative of choice resides in Vancouver and although not stated, may be one of the factors driving the application to change the location of the proceeding. In the absence of argument or evidence to suggest that travel for the representative is more onerous than travel for the appellant, that is a neutral consideration in this case." The general view is that it was open to counsel not to accept the retainer and to suggest to the claimant seek counsel in the province where they reside, and that not having done this, counsel can either travel to the location where the hearing is being held to participate in the hearing in-person, counsel can request that they be able to appear via video or telephone, or the claimant can retain any of the number of counsel who are available to provide legal services in in the location where the hearing is being held.
• (b) whether a change of location would allow the proceeding to be full and proper:
  • Not generally necessary for witnesses to testify in person for a proceeding to be "full and proper": It is common that witnesses will provide testimony by telephone and it will not generally be necessary to change a location in order to hear from witnesses in person. In this respect, where witnesses are in another city in Canada and they testify by telephone, the claimant is in no different a position from the numerous claimants who rely on witnesses located overseas and consequently adduce their evidence by telephone or video.
• (c) whether a change of location would likely delay the proceeding: This is a consideration both where a date has been set and where a date has not been set.
  • Where hearing date set: In terms of cases where a date has been set, in interpreting its similar rule, the Immigration Appeal Division has held that a change of location that would require abandoning an existing date and substituting it for a later date is a factor that points against granting an application to change location.
  • Where hearing date not set: Delay of a proceeding is also a factor even for claims where a hearing date has not yet been scheduled. The Board publishes statistics on the number of pending cases in each of its regions on its website. The Eastern region has a greater number of pending cases than the Central region, which in turn has a greater number of pending cases than the Western region, and as a result, all else being equal, changing location to the Eastern region is likely to delay a proceeding, while changing location to the Western region is unlikely to do so.
  • Delay should be considered, not expediting a hearing: While the Division must consider whether a change of venue request will result in a delay or slowing of the proceedings, the expediting of proceedings is not a listed factor. While it is open to the Division to consider any relevant factors, as a matter of policy, claimants should not be permitted to change the venue of their cases simply to obtain an earlier hearing date. Allowing applications for a change of venue so as to allow an earlier hearing date is not proper, as the likely impact on proceedings is that claimants will seek to bring such applications as a form of “forum shopping.” Ultimately, this would not benefit the operation of the Division as pressures would simply shift from one location to another, with a concomitant increase in delay in the receiving location. Furthermore, this option would be available only to those with sufficient financial means to travel for the purpose of attending their hearing. This provision cannot have been intended to provide an advantage to those of greater financial means. Instead, the Refugee Protection Division has a Policy on the Transfer of Files for Hearings by Videoconference which provides for a principled, as opposed to ad hoc, approach to transferring workload between regions and using videoconferencing in order to efficiently and fairly utilize the Board's resources.
• (d) how a change of location would affect the Division’s operation:
  • Does the Board have an office in the location proposed? In commenting on its similar rule, the Immigration Appeal Division has noted that there are administrative and operational implications for IAD processes conducted in itinerant locations. The Board has registries in Montreal, Toronto, and Vancouver, and it has permanent offices in a number of other cities including Ottawa, Calgary, Edmonton, and Winnipeg, and facilities and resources to conduct hearings in those cities are generally more readily available than in itinerant locations such as Saskatoon, where the Board's presence is more occasional. Such operational realities are properly considered when entertaining such requests to move proceedings.
• (e) how a change of location would affect the parties:
  • Effect on Minister: The administrative and operational effects on the Minister of a change in location requested by a claimant is a factor to be considered where the Minister is intervening in a proceeding. It is for this reason that the the Application to Change the Location of a Proceeding form instructs that any application made by a claimant "must also include the views of the Minister, if known." By way of example, in interpreting its similar rule, the Immigration Appeal Division concluded that this factor pointed against a change of location as follows: "In this case, the file would have to be physically transferred between the two Canada Border Services Agency (CBSA) units that serve the IAD’s Western Region and a different hearings officer would be required to prepare the file on relatively short notice. A transfer within one week of an ADR proceeding would, in this circumstance, be an unreasonable hardship on the respondent in the absence of other exceptional circumstances that would compel such a transfer."
• (f) whether a change of location is necessary to accommodate a vulnerable person: Vulnerable persons are individuals whose ability to present their cases before the IRB is severely impaired. Regard should be had to the Chairperson Guideline 8: Procedures With Respect to Vulnerable Persons Appearing Before the IRB. A number of commonly considered accommodations, such as allowing the vulnerable person to provide evidence by videoconference or other means, allowing a support person to participate in a hearing, and creating a more informal setting for a hearing may be relevant to requests to change the location of a hearing.
• (g) whether a hearing may be conducted by a means of live telecommunication with the claimant or protected person:
  • In general, videoconferencing is not considered unfair or a detriment: Section 164 of the Immigration and Refugee Protection Act (IRPA) provides that "where a hearing is held by a Division, it may, at the Division's discretion, be conducted in the presence of, or by means of, live telecommunication with, the person who is the subject of the proceedings." The Board has a policy entitled Use of Videoconferencing in Proceedings before the Immigration and Refugee Board of Canada which sets out that it is the IRB's position that provided that it is carried out in accordance with appropriate technological and procedural standards, videoconferencing does not affect the quality of the hearing or decision-making and respects the principles of natural justice and procedural fairness. That said, while not strictly a legal consideration, it may be noted that many counsel do not like videoconferencing and academic commentators have called on the Board to "limit this practice as much as possible" because of the way that, among other things, the subtle lags inherent in the technology can affect perceptions of credibility according to psychological research. The Board commissioned an external review of the use of videoconferencing technology in hearings and the resultant report includes much grousing from Board Members; the Board made some changes to its practices in response to the report, but other challenges identified by Members and counsel therein remain.
  • The Board can partially accommodate a request: In his text, Waldman notes that "in some cases, the tribunal will partially accommodate the request by allowing the person to appear by video conference so that the tribunal is located in the location set for the hearing and the claimant and their counsel are located at a different location."
  • Claimant retains the option to attend in person: The Refugee Protection Division Policy on the Transfer of Files for Hearings by Videoconference states that where a file is heard via videoconference at a different RPD office from that nearest to the claimant, a claimant retains the right to, at their own expense, attend a hearing in-person in another region from where they reside: "a claimant, and counsel, if any, may choose to attend the hearing in person in the receiving region at claimant's own expense."
  • Types of cases where videoconferencing is inappropriate: The Refugee Protection Division Policy on the Transfer of Files for Hearings by Videoconference recognizes that there are circumstances in which it is inappropriate to hold a hearing by videoconference, including certain cases involving unaccompanied minors and persons who, in the opinion of the RPD, are unable to appreciate the nature of the proceedings; some cases involving detained persons receiving priority processing; and particular highly complex cases, for example, cases likely to involve multiple sittings, those involving in-person Ministerial interventions where case complexities have been confirmed, or those involving the joining of multiple files where significant case complexities exist.

This rule governs changes to the region in which a claim will be heard, not conversions between virtual and in-person hearings

Applications to convert the format of a hearing, for example from remote to on-site, are addressed through Rule 50 with its 10-day deadline, not through this rule, as stated by the Division.

An application to change the location of a proceeding does not put other timelines on hold

Nothing in the Refugee Protection Division Rules or the BOC forms indicates a hold period pending a venue change request. As such, the fact that an individual has moved and has submitted a request to transfer their file does not excuse them from appearing at other proceedings, filing completed BOC forms on time, etc.

The Division has the jurisdiction to conduct a hearing even if a claimant departs from Canada

One issue that can arise with regards to the location of proceedings relates to the Division's jurisdiction to conduct proceedings where the claimant is outside of Canada. Claims will only be referred to the Division where a claimant is in Canada, but in some cases a claimant may leave Canada while their claim is pending. For example, a claim may be declined, the claimant may judicially review the decision, the claimant may be deported, and then the claimant may succeed on judicial review and have their matter returned to the Board. In some situations, the claimant will be permitted to return to Canada to attend their hearing at that point. Canadian immigration authorities can authorize an individual’s return under subsection 52(1) of the IRPA. In other cases, the Division has conducted a hearing remotely while the claimant is outside of Canada, for example by telephone or based upon the record (Freitas v. Canada). In other cases, the Board has proceeded with the case "as though the [claimant] were in Canada." The court has also declined to order that claimants be returned to Canada, but nonetheless ordered that a decision on their claim be issued.

See also: Canadian Refugee Procedure/RPD Rule 65 - Abandonment#A claim is not automatically abandoned upon a claimant's departure from Canada.