Refugee Appeal Division Rules (SOR/2012-257)

Specialized Knowledge

Marginal note:Notice to parties

• 24 (1) Before using any information or opinion that is within its specialized knowledge, the Division must notify the parties and give them an opportunity to,

  • (a) if a date for a hearing has not been fixed, make written representations on the reliability and use of the information or opinion and provide written evidence in support of their representations; and

  • (b) if a date for a hearing has been fixed, make oral or written representations on the reliability and use of the information or opinion and provide evidence in support of their representations.

• Marginal note:Providing written representations and evidence

  (2) A party must provide its written representations and evidence first to any other party and then to the Division.

• Marginal note:Proof written representations and evidence were provided

  (3) The written representations and evidence provided to the Division must be accompanied by proof that they were provided to any other party.

Notice of Constitutional Question

Marginal note:Notice of constitutional question

• 25 (1) A party who wants to challenge the constitutional validity, applicability or operability of a legislative provision must complete a notice of constitutional question.

• Marginal note:Form and content of notice

  (2) The party must complete the notice as set out in Form 69 of the Federal Courts Rules or any other form that includes

  • (a) the party’s name;

  • (b) the Division file number;

  • (c) the specific legislative provision that is being challenged;

  • (d) the material facts relied on to support the constitutional challenge; and

  • (e) a summary of the legal argument to be made in support of the constitutional challenge.

• Marginal note:Providing notice

  (3) The party must provide

  • (a) a copy of the notice to the Attorney General of Canada and to the attorney general of each province of Canada, in accordance with section 57 of the Federal Courts Act;

  • (b) a copy of the notice to the Minister even if the Minister has not yet intervened in the appeal;

  • (c) a copy of the notice to the UNHCR, if the UNHCR has provided notice of its intention to provide written submissions, and to any interested person; and

  • (d) the original notice to the Division, together with proof that copies were provided under paragraphs (a) to (c).

• Marginal note:Time limit

  (4) Documents provided under this rule must be received by their recipients at the same time as the Division receives the appellant’s record, respondent’s record or the reply record, as the case may be.

• Marginal note:Deciding of constitutional question

  (5) The Division must not make a decision on the constitutional question until at least 10 days after the day on which it receives the notice of constitutional question.

Conferences

Marginal note:Requirement to participate at conference

• 26 (1) The Division may require the parties to participate at a conference to discuss issues, relevant facts and any other matter in order to make the appeal fairer and more efficient.

• Marginal note:Information or documents

  (2) The Division may require the parties to give any information or provide any document, at or before the conference.

• Marginal note:Written record

  (3) The Division must make a written record of any decisions and agreements made at the conference.

Documents

Form and Language of Documents

Marginal note:Documents prepared by party

• 27 (1) A document prepared for use by a party in a proceeding must be typewritten, in a type not smaller than 12 point, on one or both sides of 216 mm by 279 mm (8 ½ inches x 11 inches) paper.

• Marginal note:Photocopies

  (2) Any photocopy provided by a party must be a clear copy of the document photocopied and be on one or both sides of 216 mm by 279 mm (8 ½ inches x 11 inches) paper.

• Marginal note:List of documents

  (3) If more than one document is provided, the party must provide a list identifying each of the documents.

• Marginal note:Consecutively numbered pages

  (4) A party must consecutively number each page of all the documents provided as if they were one document.

Marginal note:Language of documents — person

• 28 (1) All documents used by a person who is the subject of an appeal in an appeal must be in English or French or, if in another language, be provided together with an English or French translation and a declaration signed by the translator.

• Marginal note:Language of Minister’s documents

  (2) All documents used by the Minister in an appeal must be in the language of the appeal or be provided together with a translation in the language of the appeal and a declaration signed by the translator.

• Marginal note:Translator’s declaration

  (3) A translator’s declaration must include the translator’s name, the language and dialect, if any, translated and a statement that the translation is accurate.

Documents or Written Submissions not Previously Provided

Marginal note:Documents or written submissions not previously provided — person

• 29 (1) A person who is the subject of an appeal who does not provide a document or written submissions with the appellant’s record, respondent’s record or reply record must not use the document or provide the written submissions in the appeal unless allowed to do so by the Division.

• Marginal note:Application

  (2) If a person who is the subject of an appeal wants to use a document or provide written submissions that were not previously provided, the person must make an application to the Division in accordance with rule 37.

• Marginal note:Documents — new evidence

  (3) The person who is the subject of the appeal must include in an application to use a document that was not previously provided an explanation of how the document meets the requirements of subsection 110(4) of the Act and how that evidence relates to the person, unless the document is being presented in response to evidence presented by the Minister.

• Marginal note:Factors

  (4) In deciding whether to allow an application, the Division must consider any relevant factors, including

  • (a) the document’s relevance and probative value;

  • (b) any new evidence the document brings to the appeal; and

  • (c) whether the person who is the subject of the appeal, with reasonable effort, could have provided the document or written submissions with the appellant’s record, respondent’s record or reply record.

• Marginal note:Documents or written submissions not previously provided — Minister

  (5) If, at any time before the Division makes a decision, the Minister, in accordance with paragraph 171(a.5) of the Act, submits documentary evidence or written submissions in support of the Minister’s appeal or intervention that were not previously provided, the Minister must provide the documentary evidence or written submissions first to the person who is the subject of the appeal and then to the Division.

• Marginal note:Proof documents or written submissions provided

  (6) The additional documents or written submissions provided to the Division under subrule (5) must be accompanied by proof that they were provided to the person who is the subject of the appeal.

• Marginal note:Reply to Minister’s documents or written submissions

  (7) The person who is the subject of the appeal may reply to the additional documents or written submissions in accordance with rule 5 with any modifications that the circumstances require.

Providing a Document

Marginal note:General provision

30 Rules 31 to 35 apply to any document, including a notice or request in writing.

Marginal note:Providing documents to Division

• 31 (1) A document to be provided to the Division must be provided to the Division’s registry office that is located in the same region as the Refugee Protection Division’s registry office through which the notice of decision under appeal was provided.

• Marginal note:Providing documents to Refugee Protection Division

  (2) A document to be provided to the Refugee Protection Division must be provided to the Refugee Protection Division’s registry office through which the notice of decision under appeal was provided.

• Marginal note:Providing documents to Minister

  (3) A document to be provided to the Minister must be provided to the Minister’s counsel.

• Marginal note:Providing documents to person other than Minister

  (4) A document to be provided to a person other than the Minister must be provided to the person’s counsel if the person has counsel of record. If the person does not have counsel of record, the document must be provided to the person.

Marginal note:How to provide document

32 A document may be provided in any of the following ways:

• (a) by hand;

• (b) by regular mail or registered mail;

• (c) by courier;

• (d) by fax if the recipient has a fax number and the document is no more than 20 pages long, unless the recipient consents to receiving more than 20 pages; and

• (e) by email or other electronic means if the Division allows.

Marginal note:Application if unable to provide document

• 33 (1) If a party is unable to provide a document in a way required by rule 32, the party may make an application to the Division to be allowed to provide the document in another way or to be excused from providing the document.

• Marginal note:Form of application

  (2) The application must be made in accordance with rule 37.

• Marginal note:Allowing application

  (3) The Division must not allow the application unless the party has made reasonable efforts to provide the document to the person to whom the document must be provided.

Marginal note:Proof document was provided

• 34 (1) Proof that a document was provided must be established by

  • (a) an acknowledgment of receipt signed by the recipient or a statement of service, if the document was provided by hand;

  • (b) a confirmation of receipt if the document was provided by registered mail, courier, fax or email or other electronic means; or

  • (c) a statement of service if the document was provided by regular mail.

• Marginal note:Statement of service

  (2) For the purpose of paragraph (1)(a) or (c), a statement of service consists of a written statement, signed by the person who provided the document, that includes the person’s name and a statement of how and when the document was provided.

• Marginal note:Statement – unable to provide proof

  (3) If a party is unable to provide proof that a document was provided in a way required by paragraph (1)(a) to (c), the party must provide a written statement, signed by the party, that includes an explanation of why they are unable to provide proof.

Marginal note:When document received by division

• 35 (1) A document provided to the Division or to the Refugee Protection Division is considered to be received on the day on which the document is date-stamped by that division.

• Marginal note:When document received by recipient other than division

  (2) A document provided by regular mail other than to the Division or to the Refugee Protection Division is considered to be received seven days after the day on which it was mailed. If the seventh day is not a working day, the document is considered to be received on the next working day.

• Marginal note:Extension of time limit — next working day

  (3) When the time limit for providing a document ends on a day that is not a working day, the time limit is extended to the next working day.

Applications

General

Marginal note:General provision

36 Unless these Rules provide otherwise,

• (a) a party who wants the Division to make a decision on any matter in a proceeding, including the procedure to be followed, must make an application to the Division in accordance with rule 37;

• (b) a party who wants to respond to the application must respond in accordance with rule 38; and

• (c) a party who wants to reply to a response must reply in accordance with rule 39.