Modernization of Divisional Rules of Practice at the Immigration and Refugee Board

Annex B

Consultation – Invitation to Participate
Modernizing Divisional Rules of Practice at the Immigration and Refugee Board 2024-2025

Introduction

The Immigration and Refugee Board (IRB) is currently undertaking a full revision of the Immigration Division (ID) Rules, as well as a targeted review of the Refugee Protection Division (RPD) Rules and Refugee Appeal Division (RAD) Rules. Minor revisions will also be considered to align certain Immigration Appeal Division (IAD) Rules with the Rules of the other Divisions.

The IRB invites comments on the issues and proposals described below. Please provide your input during the consultation period from January 14^th, 2025 to February 4^th, 2025, using the separate form provided.

Context

Each set of Divisional Rules establishes the practices and required procedures for each respective Division. The Rules provide directions to members and direct parties who appear before the Divisions in their presentation of cases. The Rules of each Division are binding, although certain Rules expressly grant discretion.

Except for the IAD Rules, it has been more than 10 years since any IRB Divisional Rules have been reviewed:

• ID Rules were last updated in 2002;
• RPD Rules were last updated in 2012;
• RAD Rules were established in 2012 (no updates);
• IAD Rules were last updated in 2022.

The overall objectives for revising the Divisional Rules are to simplify, modernize, create efficiencies, and enhance procedural fairness, including:

• Making the Rules easier to navigate and understand;
• Expanding electronic exchange of documents with parties and their counsel with a focus on expediting electronic case processing;
• Amending certain procedures to enable a digital tribunal;
• Enhancing efficiency of proceedings to support timely and faster completion of cases, including timely filing of evidence and disclosure;
• Enhancing transparency, procedural fairness and access to justice, and strengthening program integrity.

In revising the Divisional Rules, the IRB aims to ensure alignment, where appropriate, across its Divisions and with other relevant regulations under the Immigration and Refugee Protection Act (IRPA).

Issues for Consultation

The IRB is providing external stakeholders, CBSA and IRCC an opportunity to comment on the key proposed changes to revise the ID Rules. The proposed changes take into account feedback received during previous consultations with stakeholders, CBSA and IRCC (Fall 2022 and Spring 2023).

The Board has identified themes and has grouped the content of the consultation questions accordingly below.

Issue 1: Updating the Rules to enable a digital tribunal, including addressing electronic means of communication and virtual hearings

The Board aims to continue to transform itself into a modern administrative tribunal with simpler and more consistent processes and technological tools with the goal of increasing efficiencies in processing cases, from intake to decision.

The Board plans to modernize its functions by further facilitating and enabling electronic communications. We propose to do this by updating the delivery methods for submitting documents in the Rules. The current Rules allow for submission of documents electronically, in-person, by mail or by fax. In this age of technology, the vast majority of participants (e.g., parties and designated representatives) have access to digital means of communication.

The proposed Rules would place an emphasis on electronic means of communication such as by email or other means authorized by the Board (e.g., MyCase), but would provide flexibility where these methods are not feasible or to those who are unable to file electronic documents. The vast majority of parties and designated representatives already submit their documents to the Board electronically via email or MyCase. In addition, amendments to the Rules would reflect technological advances by clarifying requirements concerning virtual hearings, the format of electronic documents and providing the means for electronic signatures on decisions, among others. There are several advantages for participants associated with the electronic filing of documents, including:

• Simplifying their interactions with the Board and providing clear instructions for document submissions by electronic means.
• Making it easier and faster to file documents by eliminating the need for paper and for mailing these to multiple recipients.
• Reducing costs associated with handling paper documents such as printing, mailing and the need to maintain a storage space.
• Making it easier to access, organize and search documents.

Immigration Division

The ID is considering the following changes:

1. Make the use of electronic communication a primary and preferred mode of communication, while maintaining procedural safeguards. The Board would be authorized to provide exceptions and specify the use of other means of communication in exceptional circumstances (e.g., for operational reasons or for those who may need additional supports or accommodations).
2. Remove specific references to other document delivery methods (e.g., in-person, fax, mail) that are currently in the Rules unless the Board authorizes the use of those other methods (e.g., in a practice notice).
3. New Rule: Clarify that an electronic document that meets the requirements specified by the Division would be deemed to have been provided to the Division, the Minister and or a person other than the Minister. This means that a party would not have to provide additional paper copies to the other party.
4. Clarify the format requirements for documents submitted to the Board to reflect the use of electronic communication, including the fact that an electronic document provided by the Division is considered the original version. Parties would be asked to retain the original paper version for the duration of the proceedings in case it is requested by the Division. Currently, the Rules do not address the electronic format of documents. This amendment would simplify and clarify the process for filing documents for participants.
5. New Rule: Add the requirement that any electronic document, including an affidavit or statutory declaration, that meets the requirements specified by the Division is deemed to have been provided in accordance with the Rules governing the provision of documents to the Division and parties.
6. Reflect the use of virtual hearings by clarifying that the Division would provide the connection details to parties if a hearing is held virtually.

Immigration Appeal Division

7. Consider minor amendments to certain Rules to align with other Rules concerning methods of communication with the Board for submission of documents (i.e., establish electronic communication as a primary means of communication and remove other means) and assess if the Rules should be amended to reflect the use of virtual hearings.

Issue 2: Requiring earlier disclosure of information and introducing time limits for specific applications or actions

The ID is considering amending its existing Rules to require earlier disclosure of information to ensure that certain applications are resolved in a timely manner to avoid or minimize postponement of proceedings. Specifically, the Board is seeking to increase efficiencies by requiring earlier disclosure of information or documents so files can be triaged and/or scheduled earlier in the process and to ensure sufficient preparation time for the Board and parties before a hearing. The current Rules do not adequately capture the complex realities in scheduling a hearing or in allowing parties to properly gather and assess information to be submitted to the Board. Earlier disclosure of information would contribute to a more effective and efficient triaging and processing of cases referred to the ID and improve scheduling strategies. Earlier disclosure as well as improved rigour associated with time limits for dealing with issues and questions raised in applications would allow more time for parties to review, analyse and respond to evidence, which can help to better prepare for their case.

Immigration Division

The ID is considering the following changes:

8. Add the requirement for the Minister to provide all relevant information and documents for detention review and admissibility hearings, whether or not the Minister intends to rely on these materials at the hearing. This amendment would address specific deficiencies in the current Rules that were noted by the FCA in Brown v. Canada (Citizenship and Immigration), 2020 FCA 130, as well as concerns raised by stakeholders.
9. Add the requirement for the Minister to inform the Division and counsel if a person concerned who is detained is relocated to another detention facility. At present, hearings may start late or be put over because the Division was not informed that a person concerned was moved to another detention facility. This measure would increase efficiency and ensure hearings take place in a timelier manner.
10. Reformulate the requirement for the Minister to provide their information regarding the detention review not just to the person concerned but also counsel, if the person detained has retained counsel. Currently, the Rules specify that the information must be received by the Division and the person detained only. The Minister would be required to provide the information under the following time limits:
    • From “as soon as possible” for 48-hour reviews and “3 days” for 7-day and 30-day reviews to “as soon as possible” for 48-hour and 7-day reviews or an admissibility hearing held at the same time and at least “5 days” for 30-day reviews or an admissibility hearing held at the same time.
11. New Rule: The new Rules would have distinct disclosure obligations provisions for the Minister and the person concerned and embed time limit requirements for detained vs non-detained cases. Specifically, in the case of non-detained admissibility hearings, the time limit for the disclosure of documents by the person concerned would be at least 10 days before the hearing rather than 5 days. Further, they would add the requirement that the Minister must provide documents in that context only if there has been an update since documents have been submitted with the original admissibility referral, as per ID Rule 3. Unless there has been an update, these documents would be expected to have been provided at the time the Minister requested the Division to hold an admissibility hearing. If a document was not available at the time of the referral, the time limit for the disclosure of documents by the Minister would also be at least 10 days before the hearing. A longer time-limit from 5 to 10 days would contribute to increasing efficiency in the process by providing both the member and parties with more time to prepare for the hearing and potentially reduce the need to adjourn a hearing due to insufficient time to review the evidence. These proposed changes reflect stakeholders’ feedback and would result in increased procedural fairness.
12. New subrule: Codifying the requirements and procedures when the Minister claims privilege for the withholding of a document, including when a claim for privilege is made under the Canada Evidence Act.
13. New Rule: Add the requirement that in the case of late disclosure of a document (non-adherence to the time limits as stipulated in the Rules), the party would not be able to use the document at the hearing unless the Division allows them to do so. The list of factors that would be considered are as follows:
    • the relevance and probative value of the document;
    • whether the party, with reasonable effort, could have met the time limits set out in Rules in respect of the document;
    • any prejudice to the other party; and
    • whether the request to be allowed to use the document was made in a timely manner and the justification for any delay.
14. New subrule: Add the requirement that witness information must be received by the Division and the other party without delay and at least 10 days before the hearing in the case of a non-detained admissibility hearing.
15. New Rule: Add a Rule to address a failure to provide witness information in accordance with the Rules. The Division could decide to allow the witness to testify after considering any relevant factors, including:
    • the reason why the information was not provided;
    • whether the proposed testimony is relevant and has probative value; and
    • in the case of a person concerned, whether the party has counsel.
16. New subrule: Clarify time limits and content of a written application to change the date or time of a hearing. The application would need to address the factors that the ID will take into consideration in deciding the application. The time limit would distinguish between the case of a forty-eight hour or seven- day review or an admissibility hearing held at the same time, the case of a thirty-day review or an admissibility hearing held at the same time and the case of non-detained admissibility hearing. The Rules would provide exceptions to these time limits and the need to address the content of an application for medical reasons or other emergencies or unforeseen circumstances beyond the party’s control, contributing to increased procedural fairness.

17. Add factors for the ID to consider in deciding an application to change the date or time of a proceeding. The non-exhaustive list of factors would incorporate existing practices to consider the need to accommodate the “vulnerabilities of a person”, as well as to consider the operational requirements of the ID.
18. New subrule: In the case of an application to change the date or time of the proceeding, for cases of a 48- hour or 7-day review or an admissibility hearing held at the same time, where a party cannot make the application in writing in advance of the proceeding, the Rules would require the party to appear at the date and at the time fixed for the proceeding and would allow the party to make the application orally directly at the proceeding. This measure would increase procedural fairness by taking into account the constraints faced by certain individuals (e.g., those in detention) when submitting an application in writing.
19. New subrule: Specify that if a party makes a subsequent application to change the date or time of the proceedings and the previous application was denied by the ID, the ID would need to consider the reasons for the denial and could allow the subsequent application only if the subsequent application is based on exceptional circumstances supported by new evidence.

Issue 3: Other measures to increase efficiency, procedural fairness and strengthen program integrity

The IRB is committed to being user-centric and optimizing the experience of all parties involved in its proceedings where possible. The proposed below revisions are expected to increase the overall efficiencies of processes and operations at the ID which should in turn contribute to faster completion of cases. Incorporating simpler, clear, and plain language, where possible, would increase accessibility for participants by making the Rules easier to navigate and understand. Finally, reflecting current common practices and codifying key requirements defined by courts in the Rules, as well as addressing issues that might undermine fairness or access to justice would enhance transparency and program integrity. While the Board would continue to complement the Rules with additional guidance such as practice notices, the proposed changes would provide participants with clearer and simplified key procedural requirements and expectations.

Immigration Division

The ID is considering the following changes:

20. Codify the Minister’s disclosure requirements outlined by the Federal Court of Appeal in FCA Brown and by the Federal Court in Dos Santos Freitas. Specifically, the Rules would set out that when requesting an admissibility hearing or a detention review, the Minister must provide the Division and person concerned all relevant information whether the Minister intends to use it or not at the hearing. Currently, there is no requirement in place in the Rules to provide all relevant disclosure whether or not the Minister intends to rely on it. Adding this requirement will align the Rules with the requirements of the case law.
21. Employ the term ‘proceeding’ instead of ‘hearing’ to ensure cross-Divisional procedural consistency.
22. New Rule: Add new requirements for voluminous disclosure for non-detained admissibility hearings. This Rule would establish that if a party provides any document of more than 100 pages for use in a non- detained admissibility hearing, the party must highlight the most relevant passages of that document in yellow. An exception would be provided for a person concerned who does not have counsel. From an access to justice perspective, this would not only improve efficiency for the ID and members but also increase clarity and approachability for parties, including those who are self-represented.
23. Simplify the Rules and use plain language so they are easier to understand by parties or other participants. This would include adding clarity where needed and ensuring better alignment with other Divisional Rules where possible. Consistency between Divisions would help clarify and streamline IRB processes, particularly for parties or other participants who appear before multiple Divisions.

24. Amend the Rules, where applicable, to include and acknowledge gender sensitive terminology and concepts. The ID proposes to remove sex indications from sections where it was deemed unnecessary in order to promote a more equitable and inclusive assessment process, aligning with the IRB’s commitment to integrating GBA Plus. The ID also proposes removing marital status indications from sections where it was deemed unnecessary, in order to promote inclusivity. These changes would account for concerns raised by stakeholders in terms of addressing outdated terminology and unnecessary requirements.
25. New Rule: Add the requirement that the ID must appoint a Designated Representative (DR) for a person concerned who is under 18 years of age, or who is unable to appreciate the nature of the proceedings at the earliest point at which the Division becomes aware of those facts. This amendment would codify an existing practice and ensure better alignment with other Divisional Rules.
26. Codify an existing practice by adding a new criterion in the designation of a DR. The criterion would require that the DR be informed of their responsibilities and be willing and able to fulfill them before they are designated to assist a person.
27. New Rule: Codify existing responsibilities of a DR, which would be as follows:
    • Deciding whether to retain counsel and, if counsel is retained, instructing counsel or assisting the represented person in instructing counsel;
    • Making decisions regarding the proceeding or assisting the represented person in making those decisions;
    • Informing the represented person about the various stages of the proceeding;
    • Seeking suitable alternatives to detention, including contacting potential bondspersons or programs, if applicable;
    • Assisting the represented person in gathering evidence to support their case and in providing evidence and, if necessary, being a witness at the hearing;
    • Protecting the interests of the represented person and putting forward the best possible case to the Division;
    • Informing and consulting the represented person to the extent possible when making decisions about their case; and
    • Filling an appeal to the Immigration Appeal Division, if applicable.
28. New Rule: Add the requirement that 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 the representative has also been designated because the person is unable to appreciate the nature of the proceedings. This new Rule would ensure alignment with the IAD Rules. By clarifying the Rules regarding DRs, the IRB expects that persons who require a DR, such as adults with mental health challenges, substance use issues, or intellectual disabilities, would receive better assistance, and consequently, a fairer hearing.
29. Given that all ID proceedings are adversarial, the Rules would clarify what is meant by a “favourable” and an “unfavourable decision” (i.e. to the person concerned) and require the Division to notify the person concerned of the Minister’s right of appeal in the case of a favourable decision.
30. Remove the term “in custody”, since it may be taken to imply criminal custody. This wording would be replaced with “in detention,” as suggested by stakeholders.
31. New subrules: Specify information that a party must provide when making a written application for an early detention review, a non-exhaustive list of factors that the ID should consider before deciding such an application, and time limits for when a response to such application must be made, and a reply, if any. These proposed changes would essentially codify existing practices as to how the ID handles these applications. They would provide transparent and clear expectations to assist parties, including self- represented persons, to prepare their application.
32. Add the requirement that when a person concerned is removed from Canada prior to a scheduled detention review, the Minister must also advise counsel in addition to informing the Division.
33. Revise the current wording which places an expectation on the person concerned to provide counsel’s information to the Division and Minister so as to allow either the person concerned or their counsel to provide this information. When a person concerned is detained, it is generally not realistic to expect them to provide this information themselves.
34. Simplify the process for counsel to become counsel of record by stipulating that they become counsel of record as soon as they provide notice that they are representing a person concerned orally or in writing, or provide a document on behalf of the person concerned. A provision would also be added to clarify that counsel of record may include an organization providing duty counsel services.

35. Whereas the current Rules require the person concerned to notify the Division and CBSA in writing of the removal of counsel of record, the new Rules would enable a detained person concerned to provide notification orally instead.
36. New subrule: Specify that any document that was submitted prior to a change in the language of the proceeding is not required to be translated. This addition would provide greater clarity to all parties and would codify current practices.
37. Add the requirement that the Minister provide documents to the person concerned, their counsel and the DR, if the person has any. The current Rule only requires the Minister to provide the document to the person concerned, or if they have counsel, to their counsel.
38. Clarify the request for summons to be either on the request of a party or on the ID’s own initiative. Clarify that when the ID orders a person to testify it can also order them to produce documents.
39. Amend the non-exhaustive factors for the Division to consider before issuing a summons so that whether a person has agreed to be summoned as a witness is taken into account.
40. Specify that parties must include a written statement indicating the name of the person who provided the summons and the date, time and place that it was provided by hand. Provide parties with the flexibility to agree to another means for providing a summon, or allow other means as deemed appropriate and reasonable by the member.
41. Clarify that to cancel a summons, the person who is summoned to appear as a witness must make a written application to the ID.
42. New Rule: Set out the process followed by the Division when it receives a request by a party to vary conditions of release from detention. This Rule would reflect the current process and as such increases transparency for parties in how such applications are dealt with. The process would be as follows:
    • An application can be made to the Division to vary or cancel the terms and conditions of a release order;
    • Reasons must be given by a party to request for a variation to the release order, specify the condition that the party wishes to vary or cancel and specifically request the decision that the party would like the ID to make;
    • Factors to be used by the ID are listed in the provision to determine the request to vary terms and conditions of a release order;
    • The Rule provides for the possibility of convoking a hearing, if necessary, to address the application;
    • Until a decision is reached, the person concerned must comply with existing conditions.
43. New Rule: Set out and codify the process to be followed when a bondsperson wishes to be removed as bondsperson from a release order. Codifying the process would increase transparency for parties and bondspersons in how such applications are dealt with. The process set out would be as follows:
    • An application can be made by a bondsperson to be removed as a bondsperson from a release order made by the ID;
    • Reasons must be given by a bondsperson to be removed and must also indicate whether another person is willing and able to act as a bondsperson;
    • Factors to be used by the ID are listed in the provision to determine the removal of a bondsperson;
    • Stipulating that it is outside the purview of the ID to decide whether a deposit is returned or whether a guarantee posted becomes enforceable;
    • The Rule provides for the possibility of convoking a hearing, if necessary, to address the application.
44. New Rule: Codify the procedural steps for applications to reopen an ID proceeding and establishing additional requirements for such applications.
45. Adopt IAD terminology by replacing “proceedings conducted in private” with “proceeding conducted in absence of the public” for consistency purposes. Additional changes include from: “Application for proceeding conducted in private” to “Form of application”.
46. For proceedings conducted in the absence of the public, replace the term “person” with “a party or member of the public” and add a reference to any other measure requested to ensure the confidentiality of the proceedings, if any.
47. New subrule: For proceedings conducted in the absence of the public, allow the possibility for a person to make an oral application where the proceeding involves a 48-hour or a 7-day detention review or an admissibility hearing held at the same time, or where an adequate explanation is provided. This constitutes an exception that ID wishes to provide to an application that must be made in writing. This proposed change is meant to recognize the constraints on a detained person concerned without counsel to make such an application, and also provides flexibility to the Division in other circumstances where an oral application would be appropriate.