ARCHIVED: Refugee Protection Division: Practice notice on the resumption of in-person hearings

Date: June 23, 2020

URL: https://irb-cisr.gc.ca/en/legal-policy/procedures/Pages/rpd-pn-hearing-resumption.aspx

Refugee Protection Division: Practice notice on the resumption of in-person hearings

​​​​​​This Practice Notice provides information concerning the resumption of in-person hearings at the Refugee Protection Division (RPD).

This Notice follows the previous Practice Notice issued by the Immigration and Refugee Board (IRB) on April 7, 2020, in which it suspended most in-person hearings at the IRB and set out other measures to respond to the COVID-19 pandemic. On June 19, 2020, the IRB issued a Resumption Notice, in which it provided 30-days’ notice that in-person hearings would resume.

As the RPD plans for the resumption of in-person hearings, this Practice Notice provides additional information and direction on the following topics:

Table of contents

  • 1. Time limit for providing the basis of claim form
  • 2. How to provide documents
    • 2.1 How to submit documents to the RPD
    • 2.2 Sending documents to the Minister
    • 2.3 Increase of 20-page limit to 50-page limit for providing documents by fax
    • 2.4 Waiver (removal) of requirement for signatures
  • 3. Applications
    • 3.1 Waiver (removal) of requirement to provide affidavits or statutory declarations
    • 3.2 Waiver (removal) of requirement to file a medical certificate
    • 3.3 Suspension of Practice Notice on Late Disclosure
    • 3.4 Suspension of Practice Notice on Voluminous Disclosure
    • 3.5 Covid-19 Factors to be considered
  • 4. Hearing procedures
    • 4.1 Hearing start times
    • 4.2 Presence of minors in the hearing room
    • 4.3 Presence of adults in the hearing room
    • 4.4 Increased use of videoconference
  • 5. Miscellaneous
    • 5.1 More information to be posted on IRB website
    • 5.2 Authority

1. Time limit for providing the basis of claim form

The time limit to provide the completed Basis of Claim Form (BOC Form) to the RPD is extended to July 19, 2020, in the following cases:

  1. if the usual 15-day time limit (port of entry claimants) falls from February 15, 2020, up to and including July 4, 2020. This extension is in accordance with the Practice Notice on the Temporary Extension of Time Limits for Filing the Basis of Claim Form (April 7, 2020); and
  2. for port of entry claims referred to the RPD from June 20, 2020 up to and including July 3, 2020.

For port of entry claims referred to the RPD on or after July 4, 2020, the usual 15-day time limit set out in the Immigration and Refugee Protection Regulations1 applies.

The following examples are provided for illustration:

  • Example 1: If your claim was referred to the RPD on February 24, 2020, the usual 15-day time limit to provide the BOC Form to the RPD would have been March 10, 2020. Your new time limit for providing the completed BOC Form is now on or before July 19, 2020.
  • Example 2: If your claim is referred to the RPD on June 30, 2020, the usual 15-day time limit to provide the BOC Form to the RPD would have been July 15, 2020. Your new time limit for providing the completed BOC Form is also on or before July 19, 2020.
  • Example 3: If your claim is referred to the RPD on July 15, 2020, the usual 15-day time limit applies, and the time limit for providing the completed BOC Form is on or before July 30, 2020.

The RPD will send claimants a confirmation of the BOC Form due date which will also include information about the special hearing if the BOC Form is not provided on time. If the BOC Form is not provided on time, the claimant will be required to participate in a special hearing to explain why the RPD should not determine that the claim has been abandoned. Although special hearings are usually held no later than five working days after the date the BOC Form is due2 , during the COVID-19 pandemic, the RPD may conduct these hearings beyond the five working days.

2. How to provide documents

2.1 How to submit documents to the RPD

IRB mailrooms resumed operations in Vancouver on June 15, 2020 and in Toronto and Montreal on June 22, 2020. From these dates forward, you will be able to provide the RPD with documents by mail, by fax, or electronically. In-person correspondence will not be accepted until further notice. Mail rooms will operate on a reduced capacity given that COVID-19 precautions limit the number of employees permitted access to IRB offices.

The RPD will use Canada Post’s epost Connect to exchange documents electronically with registered users. Please consult the RPD Practice Notice​ on using epost Connect for more information.

In addition, the RPD will accept all documents from parties via email at one of the following addresses or at the following fax numbers:

Documents submitted via email must be in PDF format. The subject line of the email must state the RPD file number, the date of the hearing, if applicable, and the type of document. General inquiries, applications or other requests submitted in the body of an email message will not be accepted. All documents must be submitted as an attachment.

If you use email or fax, the RPD strongly encourages you to also register for epost Connect. Unlike email, which limits the size of submissions to 20 MB, epost Connect can accept up to 1GB of information. In addition, epost Connect offers the potential for the RPD to send protected information to registered users as an interim solution before the IRB portal is launched.

2.2 Sending documents to the Minister

This Practice Notice does not change the method of providing documents to the Minister, as set out in Rules 38(2) and 39 of the Refugee Protection Division Rules (RPD Rules).

2.3 Increase of 20-page limit to 50-page limit for providing documents by fax

RPD Rules 7(5)(b)(iii) and 39(d) provide that documents larger than 20 pages must not be provided by fax, unless the recipient consents to receiving more than 20 pages. Until further notice, documents may be provided by fax up to 50 pages without obtaining prior consent.

2.4 Waiver (removal) of requirement for signatures

In order to expand the use of electronic communication with the RPD and to promote physical distancing, the RPD waives the requirement in the rules for signatures on documents until further notice. For example, this applies to:

  • the BOC Form, including changes to the BOC Form;
  • a declaration that a counsel is not receiving a fee; and
  • any form that requires an interpreter’s declaration.

When a BOC Form is not signed, the presiding member will ask the claimant at the beginning of a hearing to confirm, under oath or solemn affirmation, that the contents are accurate and whether or not the claimant needed an interpreter to understand the contents. If the claimant is present in person, the member may ask the claimant to sign the BOC Form at the beginning of the hearing.

2.5 Waiver (removal) of requirement to provide original BOC Form or to bring original documents to the hearing and instructions on the retention of originals

Original BOC Form

Until further notice, the RPD waives any requirement in the RPD rules3 for the claimant to provide an original BOC Form to an officer or the RPD. Where an original is not provided, a copy must be provided, and the claimant must retain the original and provide it to the RPD on request.

Bringing original documents to the hearing

Until further notice, the RPD waives the requirement in RPD Rule 42(2) to provide the original documents at the beginning of the hearing, unless directed in advance by the presiding member. Original documents must still be retained and provided to the Division upon request.

Retention of original documents

Originals of the BOC Form or other documents submitted as evidence must be retained by the claimant for the duration of any appeal or application for judicial review and for 30 days after the expiry of all time limits for filing a further appeal or application (i.e. RAD appeal, application for judicial review, etc.).

3. Applications

3.1 Waiver (removal) of requirement to provide affidavits or statutory declarations

Several RPD Rules4 refer to RPD Rule 50 which requires that an application be accompanied by an affidavit or statutory declaration. Until further notice, the requirement to provide an affidavit or statutory declaration is waived. This waiver applies to all applications, including those made pursuant to Chairperson’s Guideline 85 to declare a person to be a vulnerable person.

The waiver also applies to the Response to the Application (RPD Rule 51) and the Reply to the Response (RPD Rule 52).

3.2 Waiver (removal) of requirement to file a medical certificate

Until further notice, where the RPD Rules6 contain a requirement to provide a medical certificate, this requirement as well as the requirement to explain why there is no medical certificate, is waived.

3.3 Suspension of Practice Notice on Late Disclosure

On May 7, 2018, the RPD issued its Notice to Parties and Counsel Appearing Before the Refugee Protection Division – Late Disclosure. That practice notice requires that a request to provide disclosure to the RPD outside the time limits set out in the RPD Rules be accompanied by an application.

Until further notice, the RPD suspends that practice notice. This means that parties no longer need to make an application to have late disclosure accepted by the Division.

All other requirements of the RPD rules regarding late disclosure continue to apply, including the factors set out in RPD Rule 36 for deciding whether to allow late disclosure.

3.4 Suspension of Practice Notice on Voluminous Disclosure

On May 7, 2018, the RPD issued its Notice to Parties and Counsel Appearing Before the Refugee Protection Division – Voluminous Country Conditions Evidence. That practice notice requires that country conditions evidence over a certain page limit be accompanied by an application.

Until further notice, the RPD suspends that practice notice. This means that parties no longer need to make an application to have voluminous disclosure accepted by the Division.

3.5 Covid-19 Factors to be considered

As set out in the IRB’s Practice Notice – Special Measures Due to Covid-19, the RPD will apply its rules flexibly where the parties have difficulty complying with them due to the COVID-19 pandemic.

Where parties wish to make an application or other request under the RPD Rules7 which is based in whole or in part on the difficulties experienced during the COVID-19 pandemic, parties and their counsel are encouraged to clearly set out how the COVID-19 difficulties impact the request or application.

In addition, the RPD will consider the difficulties a person faces obtaining expert evidence to support an application to be declared a vulnerable person pursuant to Chairperson Guideline 8.

4. Hearing procedures

4.1 Hearing start times

To accommodate hearings during the COVID-19 pandemic, additional health and safety measures will be implemented. This may result in variable starting times for hearings. Parties and their counsel are encouraged to carefully review the Notice to Appear to note the scheduled start time for their hearing.

To ensure compliance with physical distancing requirements, the IRB schedules hearings in such a way to avoid large crowds in IRB common areas. It is therefore important that you pay attention to the particular start time of your hearing and check the IRB website for more information. Once your hearing is finished, please leave the building immediately.

4.2 Presence of minors in the hearing room

On March 11, 2019, the RPD issued its Practice Notice: Presence of Children at Refugee Protection Division Hearings. That Practice Notice implemented procedures whereby accompanied children who are under the age of 12 on the date of the hearing are not required to appear before the RPD unless the presiding member requires their attendance.

To promote social distancing and the health of all participants in RPD hearings, until further notice, the RPD is expanding this procedure to include all accompanied minor claimants who are under the age of 18 on the date of the hearing.

These procedures are strictly voluntary and all claimants retain the right to attend their hearing if they wish.

However, during the COVID-19 pandemic, the RPD schedules hearings on the basis that minor claimants will not attend, in order to ensure that social distancing requirements are met, which depends in part on the number of participants in a hearing. Therefore, please advise the RPD at least 10 days before your scheduled hearing if a claimant who is less than 18 years of age will be attending.

4.3 Presence of adults in the hearing room

Adult claimants who do not wish to attend their hearing in-person may request, in advance of the hearing, that they be excused from the hearing. The RPD will consider all relevant factors, including underlying health conditions and whether or not it anticipates that the testimony of the claimant will be necessary. The RPD will try to accommodate such requests, where appropriate.

These procedures are strictly voluntary and all claimants retain the right to attend their hearing if they wish.

4.4 Increased use of videoconference

To promote the use of social distancing and to protect the health and safety of all hearing participants, the RPD will be using videoconferencing, where possible, to conduct its hearings. For example, the RPD may use multiple hearing rooms to conduct a hearing, which will allow the participants to come to IRB premises but connect by video conference in order to respect social distancing requirements.

5. Miscellaneous

5.1 More information to be posted on IRB website

The RPD will monitor the measures set out in this Practice Notice and may amend the Notice as necessary.

In addition, further notices regarding health and safety protocols and other information concerning the resumption of hearings may be posted to the IRB website.

Therefore, it is important for parties and their counsel to check the IRB website regularly.

5.2 Authority

Paragraph 159(1)(g) of the Immigration and Refugee Protection Act provides that the Chairperson of the IRB has the authority to take any action that may be necessary to ensure that members of the Board are able to carry out their duties efficiently and without undue delay. The Chairperson has delegated this authority to Deputy Chairpersons.

RPD Rule 70 provides that the Division may, after giving notice to the parties and an opportunity to object, change a requirement of a rule, excuse a person from a requirement of a rule, and extend or shorten a time limit.

With respect to time limits for providing the BOC Form, subsection 159.8(3) of the Immigration and Refugee Protection Regulations provides that the RPD may, for reasons of fairness and natural justice, extend the time limit for providing the BOC Form for port of entry claimants by the number of days that is necessary in the circumstances.

Signed June 23, 2020

Roula Eatrides
Deputy Chairperson, RPD

Footnotes

Footnote 1

Immigration and Refugee Protection Regulations, SOR/2002-227, s. 159.8(2).

Footnote 2

Refugee Protection Division Rule 65(2).

Footnote 3

Refugee Protection Division Rules 3(5)(b); 7(1); and 7(5).

Footnote 4

This includes applications to effect service in an alternative manner (RPD Rule 40); applications to provide documents as evidence after a hearing (RPD Rule 43); applications to cancel a summons (RPD Rule 46); applications for a public hearing (RPD Rule 57); applications to withdraw a claim or application after substantive evidence has been accepted (RPD Rule 59); applications to reinstate a claim or application (RPD Rule 60); applications to reopen a claim or application (RPD Rules 62 and 63); and applications to be declared a vulnerable person (Chairperson’s Guideline 8).

Footnote 5

Chairperson Guideline 8: Procedures With Respect to Vulnerable Persons Appearing Before the IRB, December 15, 2012. Online

Footnote 6

This applies to applications to extend the time to provide the BOC Form (RPD Rules 8(3), (4) and (5)); applications to change the date or time of a hearing (RPD Rules 54 (6), (7), and (8)); and a certificate provided in support of explanations given at a special hearing on abandonment (RPD Rules 65(5), (6); and (7)).

Footnote 7

This includes, but is not limited to, applications for an extension of time to provide the BOC Form (RPD Rule 8); applications for a change of date or time of a hearing (RPD Rule 54); applications to provide documentary evidence after a hearing (RPD Rule 43​); applications to reopen a claim or application (RPD Rules 62 and 63); and applications to reinstate a claim or application (RPD Rules 60 and 61).

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