Immigration Appeal Division Rules, 2022 (SOR/2022-277)

Marginal note:Electronic signature

• 38 (1) Any requirement under these Rules that a document be signed is satisfied, in the case of an electronic document, by an electronic signature.

• Marginal note:Definition of electronic signature

  (2) For the purposes of subrule (1), electronic signature means a signature that consists of one or more letters, characters or other symbols in digital form that are incorporated in, attached to or associated with the document.

Marginal note:Application — inability to provide document

• 39 (1) If a party is unable to provide a document in accordance with rule 36, 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:Allowing application

  (2) The Division may allow the application only if it is of the opinion that the party has made reasonable efforts to provide the document to the person to whom the document must be provided.

Marginal note:Receipt of document by Division

• 40 (1) A document provided to the Division is considered to be received

  • (a) in the case of a paper document, on the date indicated by the date stamp that the registry office places on the document; and

  • (b) in the case of an electronic document, on the date and at the time indicated by the electronic means used to provide it.

• Marginal note:Receipt of document by party — regular mail

  (2) A document that is provided to a party by regular mail is considered to be received seven days after the day it was mailed, or 20 days after the day it was mailed if the document was sent to or from a place outside Canada.

• Marginal note:Receipt of document by party — electronic

  (3) A document that is provided electronically to a party is considered to be received at the date and time indicated by the electronic means used to provide it.

Marginal note:Extension of time limit — next working day

41 When the time limit for providing a document falls on a day that is not a working day, the time limit is extended to the next working day.

Designated Representatives

Marginal note:Designation — Immigration Division

42 If the Immigration Division designated a representative for a person in the proceedings relating to the decision being appealed, the representative is deemed to have been designated for the appeal, unless the Division decides otherwise.

Marginal note:Duty of counsel to notify — minor

43 If counsel for a party believes that the Division should designate a representative for a person because the person is under 18 years of age, the counsel must notify the Division in writing without delay, unless

• (a) the appeal is being heard together with the appeal of the person’s parent, guardian or tutor and the parent, guardian or tutor is 18 years of age or older; or

• (b) the appeal is against a removal order made at an admissibility hearing and the Immigration Division has designated a representative for the person.

Marginal note:Duty to notify — inability to appreciate proceedings

• 44 (1) If counsel for a party believes that the Division should designate a representative for a person because the person is unable to appreciate the nature of the proceedings, counsel must notify the Division in writing without delay.

• Marginal note:Exception

  (2) Counsel is not required to notify the Division under subrule (1) if the appeal is against a decision made at an admissibility hearing and the Immigration Division designated a representative for the person.

Marginal note:Purpose of counsel’s notice

45 The purpose of a notice under rule 43 or 44 is to assist the Division in determining whether, in accordance with subsection 167(2) of the Act, it must designate a representative.

Marginal note:Content of notice

46 A notice provided under rule 43 or 44 must

• (a) indicate whether counsel is aware of a person in Canada who meets the requirements to be designated as a representative and, if they are aware, provide the person’s contact information;

• (b) indicate the reasons why counsel believes that a representative should be designated; and

• (c) be accompanied by any available documents supporting the designation.

Marginal note:Factors to consider

47 When determining whether a person is unable to appreciate the nature of the proceedings, the Division must consider any relevant factors, including

• (a) whether the person can understand the reason for the proceeding and can instruct counsel;

• (b) the person’s statements and behaviour at the proceeding;

• (c) expert evidence, if any, on the person’s intellectual or physical faculties, age or mental condition; and

• (d) whether the person has had a representative designated for them for a proceeding in a division other than the Immigration Division.

Marginal note:Criteria for designated representative

48 Before designating a person as a representative, the Division must be satisfied that the person

• (a) is 18 years of age or older;

• (b) understands the nature of the proceedings;

• (c) is willing and able to act in the best interests of the person they are to represent;

• (d) does not have interests that conflict with those of the person they are to represent; and

• (e) has been informed of the responsibilities of a designated representative and is willing and able to fulfill them.

Marginal note:Responsibilities of designated representative

49 The responsibilities of a designated representative include

• (a) deciding whether to retain counsel and, if counsel is retained, instructing counsel or assisting the represented person in instructing counsel;

• (b) making decisions regarding the appeal or assisting the represented person in making those decisions;

• (c) informing the represented person about the various stages of the appeal

• (d) assisting the represented person in gathering evidence to support their case and in providing evidence and, if necessary, being a witness at the hearing

• (e) protecting the interests of the represented person and putting forward the best possible case to the Division; and

• (f) informing and consulting the represented person to the extent possible when making decisions about their case.

Marginal note:Termination of designation

50 The Division may, on its own initiative or on the request of a party, terminate a designation if the Division is of the opinion that the representative is no longer required or suitable. The Division may designate a new representative if required.

Marginal note:End of designation — 18 years of age

51 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.

Marginal note:End of designation

52 The designation of a representative for a person ends when the Division makes a decision allowing or dismissing the appeal or a decision that stays the removal order.

Interpreters

Marginal note:Need for interpreter

• 53 (1) If a party needs an interpreter for a proceeding, the party must notify the Division in writing and specify the language and, if any, dialect to be interpreted.

• Marginal note:Time limit

  (2) The notice provided under subrule (1) must be received by the Division no later than 20 days before the date fixed for the next proceeding.

• Marginal note:Need for interpreter — witness

  (3) If a witness needs an interpreter for a proceeding, the party must notify the Division in writing and specify the language and dialect, if any, of the interpreter at the same time as the witness information is provided under rule 55.

Marginal note:Interpreter’s oath

54 The interpreter must take an oath or make a solemn affirmation to interpret accurately.

Witnesses

Witness Information

Marginal note:Providing witness information

• 55 (1) A party who wants to call a witness must provide the following information in writing to the other party and the Division:

  • (a) the witness’s contact information;

  • (b) a brief statement of the purpose and substance of the witness’s testimony;

  • (c) the time needed for the witness’s testimony;

  • (d) the party’s relationship to the witness;

  • (e) an indication of whether the party wants the witness to testify remotely and, if so, the means of live telecommunication by which they will testify; and

  • (f) in the case of an expert witness,

    • (i) a description of the expert witness’s qualifications, and

    • (ii) a brief summary of the testimony to be given, signed by the expert witness.

• Marginal note:Proof document was provided

  (2) Documents provided to the Division under this rule must be accompanied by a written statement indicating how and when they were provided to the other party.

• Marginal note:Time limit — 30 days

  (3) Documents provided under this rule must be received no later than 30 days before the date fixed for the hearing.

Marginal note:Failure to provide witness information

56 If a party does not provide the witness information in accordance with rule 55, the Division may decide to allow the witness to testify after considering any relevant factors, including

• (a) the reason why the information was not provided;

• (b) whether the proposed testimony is relevant and has probative value; and

• (c) in the case of a party other than the Minister, whether the party has counsel.

Summons

Marginal note:Requesting summons

• 57 (1) A party who wants the Division to order a person to testify at a hearing must make a request to the Division for a summons, either orally during a proceeding or in writing.

• Marginal note:Factors

  (2) The Division must consider any relevant factors before deciding to issue a summons, including whether

  • (a) the testimony of the person is necessary to a full and proper hearing;

  • (b) the person is able to give the testimony; and

  • (c) the person has agreed to be summoned as a witness.

• Marginal note:Using summons

  (3) To use a summons, the party must

  • (a) provide the summons to the summoned person by hand;

  • (b) provide a copy of the summons to the Division, together with 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; and

  • (c) pay or offer to pay the summoned person the applicable witness fees and travel expenses as determined in accordance with Tariff A of the Federal Courts Rules.

Marginal note:Cancelling summons

58 To cancel a summons, the person who is summoned to appear as a witness must make an application in writing to the Division in accordance with rule 85, but is not required to provide an accompanying affidavit or statutory declaration under subrule 85(3).