[1994] 2 F.C. 563
A-725-93
The Minister of Employment and Immigration (Appellant)
v.
Dimitry Bovbel (Respondent)
Indexed as: Bovbel v. Canada (Minister of Employment and Immigration) (C.A.)
Court of Appeal, Isaac C.J., Pratte and Marceau JJ.A.—Ottawa, February 22 and 24, 1994.
Citizenship and Immigration — Immigration practice — Appeal from F.C.T.D. order reversing IRB decision respondent not Convention refugee — Under Board’s Reasons Review Policy, Board members to submit draft reasons for decision to legal advisors before issuing to parties — Motions Judge finding Policy contrary to natural justice rules as creating reasonable apprehension of lack of independence on part of Board members — No evidence Board members disposing of respondent’s claim followed Policy — Nothing wrong with Policy — Practice recently approved by F.C.A. — Nothing wrong in making legal advisor’s comments known to other Board member asked to concur in reasons — Legal advisors not asked to discuss findings of facts by members, only to determine how factual inconsistency could be resolved.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Federal Court Rules, C.R.C., c. 663, R. 1612 (as enacted by SOR/92-43, s. 19).
CASES JUDICIALLY CONSIDERED
APPLIED:
Weerasinge v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 330 (C.A.).
REFERRED TO:
IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282; (1990), 68 D.L.R. (4th) 524; 42 Admin. L.R. 1; 90 CLLC 14,007; 38 O.A.C. 321; Tremblay v. Quebec (Commission des affaires sociales), [1992] 1 S.C.R. 952; (1992), 90 D.L.R. (4th) 609; 3 Admin. L.R. (2d) 173; 136 N.R. 5; 147 Q.A.C. 169; Khan v. College of Physicians and Surgeons of Ontario (1992), 9 O.R. (3d) 641; 94 D.L.R. (4th) 193; 76 C.C.C. (3d) 10; 57 O.A.C. 115 (C.A.).
APPEAL from an order of the Trial Division ([1994] 1 F.C. 340) allowing the respondent’s application for judicial review of a decision of the Immigration and Refugee Board determining that the respondent was not a Convention refugee. Appeal allowed.
COUNSEL:
Barbara A. McIsaac, Q.C. and Anne M. Turley for appellant.
Ian E. Fine and Gil D. Rumstein for respondent.
SOLICITORS:
Deputy Attorney General of Canada for appellant.
Gold, Gulliver, Ottawa, for respondent.
The following are the reasons for judgment of the Court delivered orally in English by
Pratte J.A.: This is an appeal from an order of the Trial Division [[1994] 1 F.C. 340] allowing the respondent’s application for judicial review of a decision of the Immigration and Refugee Board determining that the respondent was not a Convention refugee.
In the Court below, the respondent attacked the decision of the Board on two grounds, namely, that the Board had erred in failing to find that he was a Convention refugee and, second, that “contrary to the principles of natural justice and the provisions of the Immigration Act”, the Board had “referred a draft of its written decision to legal counsel who [was] not a member of the Board and who [had] not participate[d] in or attend[ed] at the applicant’s hearing.”
The Motions Judge rejected the respondent’s first ground of attack but allowed the application for judicial review on the second ground. He found that the members of the Board were governed by a policy—the Reasons Review Policy—according to which they were expected to submit a draft of their reasons for decision to legal advisors before issuing them to the parties. The mere existence of that policy, according to the Judge, was sufficient to taint all the decisions rendered by the Board while the policy was in force since it created a reasonable apprehension of lack of independence on the part of its members.
The only evidence on the record of the Board’s Reasons Review Policy is found in documents that, following a request made by the appellant pursuant to Rule 1612 [Federal Court Rules, C.R.C., c. 663 (as enacted by SOR/92-43, s. 19)], were forwarded to the Registry by the Board. There is no evidence of the manner in which that policy was understood and applied by the members of the Board. More importantly, the record does not show whether the two members of the Board who disposed of the respondent’s claim to Convention refugee status actually followed that policy in this case. Their reasons may or may not have been submitted to the Board’s legal advisors, we do not know. This lack of evidence, according to the Judge of first instance, was of no consequence. The issue before him, as he saw it, was simply whether the Board’s Reasons Review Policy breached the rules of natural justice. We have difficulty understanding the Judge’s position on this point. If, as he found, the Reasons Review Policy prescribed a procedure that offended the principles of natural justice, certainly that defect could only affect the validity of decisions rendered in accordance with that procedure. For that reason alone, the order appealed from should be set aside. The application for judicial review was not directed against the policy of the Board but against the decision determining that the respondent was not a Convention refugee; if it was not established that this decision had been illegally made, the application could not succeed.
But there is more. Even if, contrary to our view, the Motions Judge correctly defined the issue before him and correctly assumed that a Reasons Review Policy endangering the independence of the members of the Board could create a reasonable apprehension of bias on their part, sufficient to vitiate all their decisions, the appeal should still be allowed for the very simple reason that there was nothing wrong with the policy followed by the Board.
The Board’s policy, in so far as it can be understood from the documents on the record, encourages the members of the Board, the great majority of whom have no legal training, to submit their reasons for decision to the Legal Services Branch (which is composed of lawyers who do not participate in the hearings of the Board) prior to putting their reasons in final form. The goals pursued by that policy are expressed in the following terms in a document filed by the Board:
The goals of the reasons review process prior to January 1992 were:
1. To ensure that the reasons are written in an appropriate style and form.
2. To ensure that the reasons address the issues which need to be dealt with.
3. To ensure that decisions of the IRB, IAB or the courts are not overlooked by the panel.
4. To ensure that the decisions which depart from precedent are made knowingly and after full consideration of the existing jurisprudence.
5. To ensure that the reasons are consistently of as superior a quality as possible by drawing upon the legal unit’s knowledge and expertise.
6. To ensure that the legal unit is aware of the decisions being made so that the bank of jurisprudence is updated and complete.
Chapter 15 of the Convention Refugee Determination Division Member’s Handbook of October 16, 1990, is entitled “decisions and reasons”. It refers in many places to the role played by the members of the Legal Services Branch. The following passages of that handbook are of interest:
1. INTRODUCTION
This chapter deals with decisions and reasons following a Refugee Division hearing into a claim ….
A “decision” is a panel’s final determination on a claim or application, while “reasons” are the panel’s explanation for the decision.
This chapter explains when Refugee Division members must give written reasons ….
The chapter also discusses the role of the Board’s legal advisers in reviewing reasons for decision.
…
4. CONSULTATION AND COLLEGIALITY IN DECISION-MAKING
Between Panel Members and Other CRDD Members
It is suggested that Refugee Division members may consult with one another, subject to the following limitations:
(i) No new evidence should be considered in reaching a decision, unless the participants at the hearing are given an opportunity to respond ….
(ii) A panel should not decide a case on a new ground, one not raised at the hearing, unless the participants are given an opportunity to respond ….
(iii) While a panel may receive the advice of the other members, only the panel members should participate in the final decision. This simply means that panel members should not abdicate in any way their responsibility to decide the case themselves.
Between Panel Members and Board’s Lawyers
The considerations set out above apply equally well to discussions between panel members and the Board’s legal advisers. While the Board’s lawyers may give advice, it is the panel members themselves who must decide the case. Members, of course, are free to accept or reject the advice of legal advisers, as the members see fit.
The Board’s lawyers may suggest that a case would be better decided on different grounds than what the panel has proposed, but the panel should not decide the case on those different grounds if the grounds were not raised at the hearing or unless the parties were given an additional opportunity to comment.
…
14. ROLE OF THE LEGAL SERVICES BRANCH
The Board’s legal advisers provide opinions on request to the members and staff of the Board on a variety of legal matters ….
Legal advisers try to provide whatever legal assistance a Refugee Division panel may require; ….
Legal advisers provide written opinions on legal issues that have been raised at hearings, if a panel member so requests …. In this context, the role of the legal adviser is an extension of the research function of the individual member.
…
Written reasons for Refugee Division members may be submitted in preliminary draft form to legal advisers in advance of the release of the reasons to the parties affected. A legal adviser peruses the draft reasons with certain objectives in mind. These are mainly:
(a) to ensure that the reasons address the issues which need to be dealt with, and
(b) to ensure that decisions which depart from precedent are made knowingly and after full consideration of the jurisprudence.
The review procedure does not result in restricting or imposing in any way upon the authority and responsibility of a panel to decide a case or to express the reasons in any manner it may choose. Once the legal adviser has made comments or suggestions, the panel or any member of it is free to adopt or reject them. This practice has the further purpose of ensuring that the legal branch is aware of the decisions being made so that the bank of jurisprudence is updated and complete.
…
16. ADMINISTRATIVE ROUTING OF WRITTEN REASONS
When a member has completed a draft set of reasons, the following steps are followed at the present time:
1. The completed draft and the case file are sent to the regional legal advisers. Some files may be sent on to be reviewed by legal advisers in Ottawa.
2. A legal adviser will review the draft reasons and comment, if necessary, directly on the draft ….
3. The legal adviser who reviewed the reasons will return the draft reasons, with comments, and the file to the author of the reasons. The author will decide whether or not to make changes to the reasons based on the comments. If major changes are made, the reasons may be returned to Legal Services for a review of only those aspects of the decision that are new ….
4. When the review process has been completed and the author is satisfied with the reasons, the reasons and the file in the case will be sent to any other panel members. The author of the reasons should not remove the draft reasons with the legal adviser’s comments from the file. It may be that those comments trigger a concern in other panel members prompting them to dissent or to write separate, concurring reasons, or even to convince the author of the reasons to make further changes.
5. The co-panel member in the case will either sign the reasons to show that he or she concurs, or write dissenting or concurring reasons. In the latter two cases, the reasons may be sent to Legal Services for review (usually the same lawyer will be assigned to review majority and minority reasons in a case) and the steps outlined above are applicable to these reasons.
It appears that on December 8, 1989, the Director of Legal Services sent a memo to the Senior Legal Advisors of the Board notifying them that a new “Reasons Review Policy”, designed “to streamline the reasons review process and to decrease the turn around time for files in Legal Services”, was to be implemented immediately. A document entitled “Reasons Review—Temporary Measures CRDD Reasons” was attached to that memo. After stating the goals of the new policy, that document described the reasons review process in the following terms:
The Interim Reasons Review Process
1. Grammatical Indiscretions and Matters of Style
Corrections of grammatical errors will be made only where the change is necessary or obvious ….
Stylistic changes should be kept to a minimum…. It may be necessary to suggest stylistic changes where the style affects the substance of the reasons. For example, where because of the style the reasons do not convey the message in a clear and concise manner it may be necessary to suggest style changes.
…
4. Legal Issues
Our primary focus in reasons review will continue to be the identification of errors of law, areas where the member should be made aware of the existing jurisprudence and advising the member generally on the legal issues arising from the case. Our comments will be made within the following general guidelines:
(a) comments should be made in a brief and concise manner;
…
(f) do not spend a great deal of time verifying facts and names; it is important to look for inconsistencies that signal a problem with the facts before embarking on a time consuming review of the transcript.
The IRB Case Processing Manual, a manual intended to serve as an operational guide to all employees of the Immigration and Refugee Board who are involved in the processing of cases that come before the Board, also makes reference to the review of draft reasons by the Legal Services in a chapter entitled “Decisions and Reasons”, where it describes the procedure followed when reasons are given in support of a decision:
Decision and Reasons prepared—Reserved decisions finalized, and Bench Decisions with reasons to follow:
1. The presiding member records the disposition on the CRDD Hearing Disposition Record and ensures that it is dated and signed by him/herself and the other panel member ….
2. The presiding member has reasons drafted and provides to his/her secretary for typing.
3. The members’s secretary types the draft reasons, returns them to the member for verification and forwards them with the file to Legal Services for review.
4. Legal Services returns the reasons with the file to the member’s secretary.
5. The presiding member reviews the reasons returned from Legal Services, has final reasons typed (the member’s proofread the final reasons), signs them and forwards the files to the other panel member for signature or to write concurring reasons.
…
8. Where concurring reasons are written, the member forwards them to Legal Services for review and the reasons review process repeats itself.
This is all that we know of the Board’s Reasons Review Policy.
There is no doubt that the participation of “outsiders” in the decision-making process of an administrative tribunal may sometimes cause problem. The decisions of the tribunal must, indeed, be rendered by those on whom Parliament has conferred power to decide and their decisions must, unless the relevant legislation impliedly or expressly provides otherwise, meet the requirements of natural justice. However, when the practice followed by members of an administrative tribunal does not violate natural justice and does not infringe on their ability to decide according to their opinion even though it may influence that opinion, it cannot be criticized.[1] This is why this Court, in Weerasinge v. Canada (Minister of Employment and Immigration),[2] approved of the practice of the Immigration and Refugee Board to have the reasons of its members reviewed by legal advisors before their release. Mahoney J.A., speaking for the majority of the Court, expressed himself as follows [at pages 337-338]:
The Refugee Division consists of such number of full and part-time members as the Governor in Council may decide. They are appointed for terms of up to seven years. A minimum of one-tenth are required to be barristers or advocates of at least five years’ standing. It would be pure coincidence if either member of a panel hearing a particular claim were legally qualified.
The Refugee Division is a lay tribunal required to decide claims which, as I have observed, involve the life, liberty and security of the person. It must do so within the framework of extensive, confusing, and sometimes confused, jurisprudence. It is required to give written reasons for decision not favourable to claimants. The desirability of legal review of those reasons is manifest. Having come to a decision on what is essentially a question of fact: whether the claimant has a well-founded fear of persecution for a reason that engages the Convention refugee definition, a tribunal does not, in my opinion, offend any tenet of natural justice by taking advice as to legal matters contained in its reasons.
While the reasons review process, both in the more limited format described in the memorandum and the full review format suggested, could be abused and result in the reviewing lawyers influencing the decisions to which the reasons relate, there is, in my opinion, simply no foundation for a conclusion that it has been, in fact, abused, either in the case before us or generally. Any consultation by a decision maker before publishing a decision, including consultation by a judge with a law clerk, could be abused. As to whether there is an appearance offensive to our notions of natural justice, it seems to me that the question to be asked is, as in dealing with an assertion of a reasonable apprehension of bias, namely, whether an informed person, viewing the matter realistically and practically and having thought it through, would think it more likely than not that the tribunal’s decision that a claimant was, or was not, a Convention refugee had been influenced by the review of its reasons by its staff lawyers. In my opinion, that person would not think it likely.
The Motions Judge gave these reasons for not following that decision.
His first reason was that the Board’s Reasons Review Policy, although not mandatory, was formulated so as to give the impression that draft reasons were to be reviewed as a general rule. Assuming the correctness of that finding, we fail to understand how, if the Board’s policy was otherwise unobjectionable, the fact that it was generally applied could make it bad.
Another reason given by the Motions Judge in support of his decision was founded on the passage of the Member’s Handbook directing the authors of draft reasons which had been submitted to a legal advisor to leave those draft reasons in the file with the comments of the legal advisor so that they could be seen by the other member participating in the decision. This provision, according to the Judge, was “a blatant attempt to influence”. Again, we do not understand. Surely, if there is nothing wrong in the author of the reasons receiving the comments of a legal advisor, there cannot be any wrong in making those comments known to the other member of the Board who is asked to concur in the reasons.
The main ground for the Judge’s decision, however, was based on the fact that the legal advisor reviewing the draft reasons had access to the entire file and on the recommendation made to legal advisors in December 1989, that they should “not spend a great deal of time verifying facts and names” and should “before embarking on a time consuming review of the transcript” look for “inconsistencies that signal a problem with the facts”. From this, the Judge inferred that the legal advisors had, according to the policy, the authority to discuss the findings of facts made by the member. This, he considered to be objectionable in view of the assertion made by Gonthier J. in Consolidated Bathurst[3] that discussions between members of a tribunal having to determine questions of facts and other persons generally constitute a breach of natural justice if those discussions relate to the determination and assessment that the tribunal must make of the facts.
We are all of opinion that this last reason is also without merit. A fair reading of the documents on the record shows, in our view, that the legal advisors were not expected to discuss the findings of facts made by the members but merely, if there was a factual inconsistency in the reasons, to look at the file in order to determine, if possible, how the inconsistency could be resolved. True, there was always the possibility that the legal advisors might, since they were in possession of the file, exceed their mandate and try to influence the factual findings of the Board. However, as mentioned by Mahoney J.A. in Weerasinge, any policy is susceptible of abuse.
We would allow the appeal, set aside the order of the Trial Division and dismiss the respondent’s application for judicial review.