TB7-23031

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File / Dossier de la SAR : TB7-23031 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX (a.k.a. XXXX XXXX XXXX) Personne(s) en cause Appeal considered at Toronto, ON Appel instruit à Date of decision June 15, 2018 Date de la décision Panel Deborah Morrish Tribunal Counsel for the person(s) who is(are) the subject of the appeal David Matas Barrister and Solicitor Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION APPLICATION FOR EXTENSION OF TIME [1] Counsel for the Appellant makes an application to the Refugee Appeal Division (the "RAD") for an extension of time for an undefined period to submit documents or written submissions not previously received by the RAD, pursuant to RAD Rule 29 of the Refugee Appeal Division Rules (the "RAD Rules").1 This application was received on May 4, 2018 as one of dozens of applications for an extension of time covering files held by both the Vancouver and Toronto RAD registries in respect of dozens of appeals before the RAD. [2] The Minister was provided with a copy of this application and responded on May 23, 2018. [3] No reply from counsel for the Appellant has been received. DETERMINATION OF THE APPLICATION [4] The RAD denies the application for an extension of time for an undefined period to submit documents or written submissions not previously received by the RAD pursuant to RAD Rule 29. BACKGROUND [5] The Appellants for several RAD appeals, including this appeal had initially advised the RAD that they had retained a lawyer, Bashir Khan, who filed an Appellant's Record. The RAD had identified a number of concerns associated with how these appeals were presented to the RAD, in particular, whether or not submissions for these appeals were in compliance with RAD Rule 3(3)g. On January 18, 2018, the RAD advised counsel Khan in writing of these concerns and requested a meeting to discuss. [6] On January 26, 2018, the RAD together with a representative from the Board's legal services division, held a telephone conference call to discuss these issues. Counsel Khan acknowledged these specific issues addressed by the RAD and advised that he immediately intended to transfer a large number of files including this appeal to counsel David Matas to act as counsel of record. [7] On February 1, 2018, the RAD contacted counsel Matas in writing to ensure that he had the capacity and willingness to take on these files and to request that a timeline be established for the submission of any Rule 29 applications for new documents and/or submissions. On February 2, 2018, counsel Matas confirmed his capacity and willingness to take on these files and to provide the RAD with his timeline for completing any requested submissions. [8] Notwithstanding periodic contacts from the RAD registry to counsel Matas in order to establish a timeline for completing any Rule 29 submissions for the files transferred from former counsel Khan, counsel Matas did not provide such timelines to the RAD. The RAD wrote to counsel Matas on March 29, 2018, stating that he should provide any submissions or applications for extension of time by April 27, 2018; otherwise the RAD would proceed with the appeals on the basis of the existing RAD record. Any further extension of time if needed would require an application with justification and evidence if applicable. [9] On May 2, 2018, the RAD received applications for an extension of time covering all appeals transferred from former counsel Khan in both the Vancouver and Toronto RAD registries. Personal information and the file numbers (etc.) of the other Appellant were included and not redacted. [10] In this application, there is no reference to the Appellant's particular circumstances. The application states that the extension is to file "...an additional memorandum or the Record in the Appeal". No timeline is given as to when the RAD could expect to receive the documents other than counsel stateing that he would endeavour to complete one case per week. Based on the number of RAD appeals where counsel Matas acts as counsel of record, counsel would require until at least early February 2019 to complete all files. [11] In these applications, counsel Matas justifies this application by submitting that the volume of files referred to his office by Bashir Khan combined with the volume of files already in his office as part of his workload, and the significant increase in new refugee protection claims have led to the abandonment by the Refugee Protection Division of timelines for hearings and that there was the unprecedented surge of refugee protection claims in Canada including Manitoba. [12] The Minister responded on May 23, 2018, and submitted that the numerous applications for an extension of time were unreasonable. The Minister noted the Chairperson Guideline 6: Scheduling and Changing the Date or Time of a Proceeding. It is submitted that Guideline 6 does not allow an unlimited right to retain counsel and that counsels must be ready and able to proceed according to the scheduling requirements of the Division. ANALYSIS [13] RAD Rule 29(2) states the following: 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. [14] RAD Rule 37(3) states that: (3) Unless these Rules provide otherwise, in a written application, the party must: a) State the decision the party wants the Division to make; b) Give reasons why the Division should make that decision; and c) If there is another party and the views of that party are known, state whether the other party agrees to the application. (4) Unless these Rules provide otherwise, any evidence that the party wants the Division to consider with a written application must be given in an affidavit or statutory declaration that accompanies the application. [15] I have also considered the factors for replying to an application for an extension of time as stated under RAD Rule 6(7): (7) In deciding an application under sub rule (6), the division must consider any relevant factors, including (a) whether the application was made in a timely matter and the justification for any delay; (b) whether there is an arguable case; (c) the nature and complexity of the appeal. [16] Furthermore, the Regulations Amending the Immigration and Refugee Protection Act, subsection 159.92(2) states: 159.91(2) If the appeal cannot be filed within the time limit set out in paragraph (1)(a) or perfected within the time limit set out in paragraph (1)(b), the Refugee Appeal Division may, for reasons of fairness and natural justice, extend each of those time limits by the number of days that is necessary in the circumstances. [17] I find that counsel Matas has not made this application in a timely manner as required by RAD Rule 6. I find that counsel was provided adequate time since February 1, 2018 to have provided an acceptable timeline for completing any Rule 29 submissions along with the submission of such records for a number of the appeals at hand. However there was no communication from him until May 2, 2018 when the application for extension of time was received by the RAD. [18] I also find that counsel Matas has not provided an acceptable justification for this continuing delay. He has not provided any evidence relevant to individual appeals but cites only the pressures of an increasing workload. According to the Chairperson Guideline 6: 3.6.1 The IRB recognizes that parties have the right to be represented by counsel, but this right is not absolute. The opportunity to retain counsel is not unlimited. The parties and any counsel they choose to retain must be ready and able to appear and proceed according to the scheduling requirements of the division and the requirements of the legislation. ... 3.6.4 The fact that counsel wants to take time off, fulfil other professional duties or attend to personal matters that are neither urgent nor unforeseen are not sufficient reasons to allow an application to change the date or time of a proceeding. [19] On February 1, 2018, counsel Matas was asked specifically by the RAD to confirm his capacity and willingness to take on this large number of files being transferred from former counsel Khan. On February 2, 2018, counsel Matas did confirm his capacity and willingness to take on the files and to provide acceptable time lines for completing any required Rule 29 submissions. To date he has not accomplished this task. It is the professional responsibility of counsel, particularly that of legal counsel, to only accept a retainer to represent clients who can be reasonably accommodated within his workload, taking into consideration the requirements and timelines applicable in this case to the RAD. [20] Furthermore, counsel Matas does not indicate in the application the number of days required to perfect the appeal as required by the Regulations. [21] Finally, considering the decision factor related to the nature and complexity of the appeal, counsel Matas has not provided any specific submissions relating to the particular circumstances of any of these appeals. [22] Accordingly, counsel Matas' application for an extension of time to file RAD Rule 29 submissions in respect of this appeal is dismissed. This appeal will be considered by the assigned member on the basis of the record submitted. To the extent that a Rule 29 submission is received by the RAD prior to the finalization of the member's decision for any particular file, such submissions will be considered by the member as part of his review of the entire record. (signed) "Deborah Morrish" Deborah Morrish June 15, 2018 Date 1 Refugee Appeal Division Rules, SOR/2012-257. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 5 RAD.25.02 (September 11, 2014) Disponible en français RAD File / Dossier de la SAR : TB7-23031