Policy on the Use of Chairperson's Guidelines and Jurisprudential Guides

Effective Date: July 7, 2022

1. Purpose

This policy applies to the exercise of the Chairperson's authority to issue written guidelines and to identify decisions as jurisprudential guides for members of the Immigration and Refugee Board (IRB or the Board).^{Footnote 1}

Guidelines and jurisprudential guides are complementary tools, the purpose of which is to promote consistency, coherence, and fairness in the treatment of cases at the Board. Guidelines are issued by the Chairperson to set out principles for adjudicating and managing cases. Jurisprudential guides are IRB decisions identified by the Chairperson that contain persuasive reasoning, are generally well-written, provide a detailed and clear analysis, and consider relevant issues in the case.

This policy establishes:

a framework that guides the exercise of the Chairperson's authority;
the effect of guidelines and jurisprudential guides;
the process for deciding to issue a guideline or identify a decision as a jurisprudential guide;
the process for revising a guideline or revoking a guideline or a jurisprudential guide.

2. Application

This Policy on the Use of Chairperson's Guidelines and Jurisprudential Guides replaces the previous Policy on the use of Chairperson's Guidelines (2003) and the Policy on the Use of Jurisprudential Guides (2003; amended 2016 and 2019).

3. Statutory authority

Paragraph 159(1)(h) of the Immigration and Refugee Protection Act^{Footnote 2} (IRPA or the Act) provides that the Chairperson “may issue guidelines in writing to members of the Board and identify decisions of the Board as jurisprudential guides, after consulting with the Deputy Chairpersons, to assist members in carrying out their duties”.

4. Leading case law

In Thamotharem, the Federal Court of Appeal recognized the importance of guidelines for achieving consistency in decision-making, particularly for large tribunals such as the IRB.^{Footnote 3}

In CARL, the Federal Court of Appeal recognized the Chairperson's broad authority to identify decisions as jurisprudential guides, as long as their purpose is to assist members in carrying out their duties.^{Footnote 4}

In Vavilov, the Supreme Court of Canada reiterated that administrative tribunals should be concerned with consistency of decision-making, as those affected by administrative decisions are entitled to expect that like cases will generally be treated alike and that outcomes will not depend merely on the identity of the individual decision maker.^{Footnote 5}

5. Circumstances for exercise of Chairperson's authority

The Chairperson considers exercising authority to issue guidelines or identify a decision as a jurisprudential guide in the following circumstances, as described more fully below: (i) to address specific legal issues, (ii) to provide guidance on questions of mixed fact and law and on facts, (iii) to provide guidance on procedural issues, or (iv) to address any other issue of importance to the Board.

5.1 To address specific legal issues

The need to address specific legal issues has various components, for example: to address an emerging issue, to resolve an ambiguity in the law, to resolve inconsistency in decision-making, or to establish legal interpretations as preferred positions.

5.2 To provide guidance on questions of fact or mixed law and fact

In addition to addressing issues that are strictly legal in nature, guidelines and jurisprudential guides may also provide guidance on a question of fact or mixed law and fact.^{Footnote 6}

Jurisprudential guides could address, for example, certain aspects of country conditions in a refugee source country. However, country conditions, by their very nature, are bound to change, and the decision to designate a jurisprudential guide which provides guidance on country conditions should be taken with the utmost caution.^{Footnote 7}

5.3 To provide guidance on procedural issues

Guidelines may be used to provide guidance on procedural issues. The Chairperson's guideline‑issuing and rule‑making powers overlap. That the subject of a guideline could have been enacted as a rule of procedure issued under paragraph 161(1)(a) of the IRPA will not normally invalidate it.^{Footnote 8}

Guidelines could be issued for specific procedural issues, such as the scheduling of proceedings, or they could be quite general in nature, such as providing broad guidance on how hearings are to be conducted.

Jurisprudential guides could also be identified to address procedural issues.

5.4 To address any other issue of importance to the Board

Most issues would fit within one or more of the previous three categories. However, the Chairperson's statutory authority to issue guidelines and identify decisions of the Board as jurisprudential guides “to assist members in carrying out their duties” is not constrained by those categories.^{Footnote 9}

6. Effect of guidelines and jurisprudential guides

Chairperson's guidelines and jurisprudential guides are not binding and members remain free to reach their own conclusions based on the facts of the case.

Members are expected to follow guidelines unless compelling or exceptional reasons exist to depart from them.

Members are expected to follow the reasoning in a decision identified as a jurisprudential guide to the extent set out in the accompanying policy note, where the facts underlying the jurisprudential guide are similar to those in the case being decided.

Members must explain in their reasoning why they are not following a guideline or a jurisprudential guide when, based on the facts or circumstances of the case, the member would otherwise be expected to follow the guideline or jurisprudential guide.^{Footnote 10}

7. Consultation process

Before the Chairperson issues or revises guidelines, identifies a decision as a jurisprudential guide, or revokes a guideline or jurisprudential guide, the Chairperson must consult with the Deputy Chairpersons, as required by paragraph 159(1)(h) of the Act.

Other consultation, internal or external to the IRB, may also take place at the discretion of the Chairperson and to the extent that the Chairperson considers appropriate for the nature of the guideline or the jurisprudential guide.

8. Revising or revoking guidelines or jurisprudential guides

Guidelines and jurisprudential guides remain in effect unless the Chairperson revokes them.

The Board will continue to monitor developments such as documentation of country conditions, decisions of the Board and decisions of higher courts to assess their impact on the guidelines and jurisprudential guides.

The Chairperson may, after the consultation process described in section 7:

revise or revoke guidelines, for example, when the guidelines become inconsistent with a subsequent higher court decision. In that case, the guidelines will either be revised to be consistent with the higher court decision, or revoked; and
revoke a jurisprudential guide when, for example, a higher court subsequently overturns the underlying decision, country conditions have changed to a point where the reasoning in the jurisprudential guide no longer assists members or there is a change in caselaw.

9. Public communication of guidelines and jurisprudential guides

The issuance of guidelines and the identification of jurisprudential guides, or their revocation, will be communicated to the public on the IRB's website and in any other manner that the IRB considers appropriate.

Parties and their counsel will therefore be expected to know the content of guidelines or jurisprudential guides that have been issued.

10. Enquiries

For information, contact:

IRB.Policy-Politiques.CISR@irb-cisr.gc.ca

Senior Director
Policy, Engagement and Parliamentary Affairs Immigration and Refugee Board of Canada Canada Building (Minto Place)
344 Slater Street Ottawa, Ontario K1A 0K1

Footnotes

Footnote 1

The Board consists of the Immigration Division (ID), the Immigration Appeal Division (IAD), the Refugee Protection Division (RPD), and the Refugee Appeal Division (RAD).

Return to footnote 1 referrer

Footnote 2

Immigration and Refugee Protection Act (justice.gc.ca).

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Footnote 3

Thamotharem v. Canada (Minister of Citizenship and Immigration), 2007 FCA 198, [2008] 1 FCR 385. Leave to appeal to the Supreme Court of Canada dismissed, December 13, 2007 (SCC No. 32185). See also Benitez v. Canada (Minister of Citizenship and Immigration), 2007 FCA 199, [2008] 1 FCR 155. Leave to appeal to the Supreme Court of Canada dismissed, December 13, 2007 (SCC No. 32180). Thamotharem stated:

[60] The use of guidelines, and other “soft law” techniques, to achieve an acceptable level of consistency in administrative decisions is particularly important for tribunals exercising discretion, whether on procedural, evidential or substantive issues, in the performance of adjudicative functions. This is especially true for large tribunals, such as the Board, which sit in panels; in the case of the RPD, as already noted, a panel typically comprises a single member.

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Footnote 4

Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196. Leave to appeal to the Supreme Court of Canada dismissed, August 5, 2021 (SCC No. 39522). The Federal Court of Appeal stated:

[46] In the case at bar, there is an express statutory grant of authority to the Chairperson. Moreover, as properly noted by the Chief Justice, there is no limitation confining the scope of paragraph 159(1)(h) to issues of law or mixed fact and law. On the contrary, the authority of the Chairperson to issue JGs is conferred in the broadest terms, as long as their purposes are to assist members in carrying out their duties, and with the only requirement that their issuance be preceded by consultation with the Deputy Chairperson.

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Footnote 5

Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.

[129] Administrative decision makers are not bound by their previous decisions in the same sense that courts are bound by stare decisis. As this Court noted in Domtar, “a lack of unanimity is the price to pay for the decision‑making freedom and independence” given to administrative decision makers, and the mere fact that some conflict exists among an administrative body’s decisions does not threaten the rule of law: p. 800. Nevertheless, administrative decision makers and reviewing courts alike must be concerned with the general consistency of administrative decisions. Those affected by administrative decisions are entitled to expect that like cases will generally be treated alike and that outcomes will not depend merely on the identity of the individual decision maker — expectations that do not evaporate simply because the parties are not before a judge.

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Footnote 6

In Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 SCR 748 at para. 35, the Supreme Court of Canada explained that “... questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests”.

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Footnote 7

CARL, supra, at paras. 89 to 91.

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Footnote 8

Thamotharem, supra, at para. 106.

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Footnote 9

See Canadian Association of Refugee Lawyers, supra, note iv, at para. 54. Also, the Federal Court of Appeal stated at para. 47: “The breadth of this power aligns with the context in which paragraph 159(1)(h) is found. Not only does paragraph 159(1)(g) authorize the Chairperson to take “any action that may be necessary to ensure that the members of the Board carry out their duties efficiently and without undue delay”, but subsection 162(2) requires the IRB to deal with proceedings “as informally and quickly as the circumstances and the considerations of fairness and natural justice permit”. To this end, sections 170 and 171 provide guidance to members in conducting proceedings, and make clear that Parliament’s intention was to promote efficiency and consistency while taking into account considerations of fairness and natural justice.”

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Footnote 10

Vavilov, supra, at para. 131: “...Where a decision maker does depart from longstanding practices or established internal authority, it bears the justificatory burden of explaining that departure in its reasons. If the decision maker does not satisfy this burden, the decision will be unreasonable.” (Emphasis in original)

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