Effective Date: July 11, 2017
1. Purpose
The purpose of this policy is to set out an approach governing communication in the Immigration Appeal Division (IAD) when such communication occurs between an Early Resolution Officer (ERO) and the parties or between an
ERO and a member in the absence of the parties concerning appeals before the
IAD.
Litigation, especially through the process of oral hearings, is an expensive and stressful way of resolving disputes. The job of
EROs is to find ways to avoid litigation where possible, and where litigation is not avoidable, to find the most efficient way of moving an appeal to its conclusion. The role of an
ERO is, first and foremost, to be a
problem solver. This means
moving away from unduly formal, legalistic and risk-averse approaches and placing a greater emphasis on proactively finding practical and efficient ways to resolve appeals or move them forward towards a conclusion without sacrificing fairness.
EROs are to use their judgement and discretion in individual cases to determine the best way to move an appeal closer to resolution. Cases will be assessed on their individual merits to see if they can be resolved without an oral hearing.
2. Application
This policy applies to all communication that takes place between
EROs and the parties concerning appeals at the
IAD, including communication that takes place in the absence of one of the parties, and between
EROs and members. Where a designated representative has been appointed for a party, for purposes of this policy, communication with the designated representative will be treated in the same way as communication with a party and will be subject to this policy. Where a party has counsel, for purposes of this policy, communication with the counsel will be treated in the same way as communication with a party and will be subject to this policy.
3. Definitions
"Early resolution" is a broad term encompassing efforts made by an
ERO to encourage the parties to resolve
IAD appeals outside of an oral hearing. It includes the
ERO gathering information at an early stage and initiating discussion between the parties, through informal methods, by email, telephone or by letter. It also includes the Alternative Dispute Resolution (ADR) conference and any other procedural conferences that are conducted by
EROs.
"Alternative dispute resolution conference" (ADR conference) means an in-person, online, telephone or videoconference meeting between the parties, facilitated by an
ERO with the objective of obtaining a consensual resolution of the appeal.
"Oral hearing" means a hearing conducted before a member of the
IAD, and where the parties may attend the hearing in person or by means of live telecommunication, at the Division's discretion.
"Paper hearing" means the process of resolving an appeal in writing on the basis of documents present in the appeal file because this would not be unfair to any party and an oral hearing is not necessary.
"Procedural conference" means the various conference methods used at the
IAD by
EROs to identify opportunities for appeal resolution or to ensure hearing readiness. Procedural conferences include: scheduling conferences, the expedited resolution of criminality appeals, stay reconsideration conferences, and show cause conferences where either a party needs to show cause why their appeal should not be declared abandoned or where the Minister needs to explain why an appeal record has not been produced in time.
"Resolution streams" are the different processes that can lead to the resolution of an appeal.
4. Background
The
IAD has been innovative in finding alternative approaches to the resolution of appeals in ways that do not necessarily involve an oral hearing. The
IAD has evolved in its practices to develop ways to resolve appeals that reflect the complexities and demands of individual cases, and that deliver justice more efficiently and less formally, while maintaining fairness. Starting in 1998, the
IAD developed
ADR conferences in the form of face-to-face mediation. Since then, other resolution streams have been developed, including paper hearings and procedural conferences.
Despite these innovations, the
IAD has a significant backlog of appeals and wait times for resolution are unacceptably long. To help address this problem,
EROs need to be enabled to use the most efficient ways to resolve or move appeals toward conclusion while maintaining fairness and the impartiality of the
IAD in the appeal process. Requiring
EROs to document and communicate to one party the content of every communication an
ERO has with the other party is burdensome and slows down the resolution process. This policy aims to speed up rather than slow down the process of resolution.
5. Policy Statement
5.1 Purpose of communication
EROs manage the early resolution of appeals by encouraging communication between the parties in an attempt to resolve appeals without oral hearings, or, if appeals cannot be resolved, to narrow the issues by obtaining agreed statements of fact from the parties. In cases that cannot be resolved, the
ERO may also meet with one or both of the parties to ensure hearing readiness.
These efforts may require the
ERO to communicate with one party in the absence of the other party, or with members independently of the parties.
EROs shall communicate with the parties in any appeal identified as being suitable for an
ADR conference, a paper hearing or other early resolution process. While the following list is not exhaustive, the communication may:
- solicit information relevant to the appeal or to the personal circumstances of the appellant, such as whether the appellant should be designated as a vulnerable person pursuant to the
Chairperson Guideline 8, or whether the appellant requires the appointment of a designated representative;
- solicit the views of the parties as to which early resolution process is most likely to resolve the appeal or move it closer to resolution;
- solicit ideas and evidence from the parties that could resolve the appeal or move it closer to resolution;
- facilitate discussion between the parties to attempt to achieve consensual resolution as soon as possible after the appeal is filed;
- where appropriate, provide the parties with an early neutral evaluation of the likely outcome of the appeal should it go to an oral hearing; and
- if the appeal cannot be resolved, discuss the hearing readiness of the appeal and attempt to narrow the issues by obtaining an agreed statement of facts that will form part of the appeal record.
5.2 Process of communication between
EROs and the parties
In order to facilitate the early resolution of an appeal, the
ERO may, in his or her discretion, communicate and discuss the appeal privately with any of the parties or their representatives.
The most efficient way to do this is often to deal with each party separately, whether by telephone or email, because it is time-consuming to schedule in-person meetings.
Where an
ERO communicates with one party in the absence of the other party, the
ERO shall advise the party that the content of the communication may be shared with the absent party unless there is an objection to doing so.
If the party objects then the communication will not be shared with the absent party.
5.3 Communication between
EROs and members in the absence of the parties
EROs may seek guidance or direction from members in the absence of either party to an appeal on matters of procedure.
Where an appeal is not resolved through early resolution efforts, the
ERO shall not discuss the substance of the appeal or what took place in the early resolution process with the member(s) assigned to decide the appeal.
The
ERO will ensure that the file being transferred to the assigned member(s) does not contain any material or reference relating to the early resolution efforts, other than disclosure requested by participants to remain on the appeal hearing file and the following information:
- an indication on the file cover that it was selected for an early resolution process;
- a disposition sheet indicating the names of the participants in the early resolution process;
- the date of any early resolution conference, and the outcome of the conference shown as “unresolved”; and
- where issues are narrowed or an agreed statement of facts is reached, this will also be noted on the appeal file.
6. Implementation
The Assistant Deputy Chairperson within the relevant region is accountable for the implementation of this policy. The IRB's three regional offices, located in Montreal, Toronto and Vancouver, will organize their operations in accordance with the requirements of this policy and associated procedures.
7. Monitoring
Program monitoring and evaluation of this policy will be carried out under the direction of the Policy, Planning and Corporate Affairs Branch.
8. References
-
Immigration and Refugee Protection Act (PDF, 1.15 MB), S.C. 2001, c. 27, sections 63, 64, 65, 66, and 168, and subsections162(2) and 175(1)
-
Immigration Appeal Division Rules (PDF, 341 KB), SOR/2002-230, subrule 25(1), and rules 57 and 58
9. Enquiries
For more information, please contact:
Director, Policy, Outreach and Engagement Directorate
Immigration and Refugee Board of Canada
Minto Place—Canada Building
344 Slater Street, 12th Floor
Ottawa, Ontario K1A 0K1