Canada Case Law

MC4-11797

Court

Refugee Appeal Division

Because the RPD's decision depended on credibility findings and the hearing recording and transcript are missing, the RAD cannot properly assess contradictions, the weight of documentary evidence or whether the RPD gave adequate reasons; the absence of the record therefore prevents correction of the RPD's errors and requires allowing the appeal and referring the matter to the RPD for re‑determination by a differently constituted panel.

Source excerpt

• Credibility findings
• Breach of natural justice
• Missing hearing recording
• Re-determination
• Evidence admissibility

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446697 B.C. Ltd. (Re)

Court

Supreme Court of British Columbia

The court set aside a without-notice bankruptcy order against TD Bank, holding the bank should have been served because the order directly affected it.

• Preservation order
• Without‑notice application
• Service of process
• Setting aside order
• Costs
• Bankruptcy-and-insolvency

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Inter Lake Reality Ltd. v. Harvey

Court

Supreme Court of Nova Scotia

The dismissal was an error of law because the Adjudicator dismissed the claim for want of prosecution on his own motion without a defendant's motion or supporting evidence and without notice to the claimant; accordingly the dismissal was set aside and the matter remitted for hearing before another Adjudicator.

Source excerpt

• Dismissal for want of prosecution
• Admissibility of fresh evidence
• Teleconference procedure
• Civil procedure rule 82.18
• Breach of natural justice

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Zahid v. Canada (Citizenship and Immigration)

Court

Federal Court

Federal Court dismissed judicial review of a RAD refugee decision, upholding adverse credibility findings and refusing to reopen the record with a divorce certificate.

• Credibility findings
• Refugee appeal division procedure
• Admissibility of new evidence (s.110(4) irpa)
• Religious conversion and persecution
• Standard of review (vavilov)
• Credibility-findings

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VC0-00460

Court

Refugee Appeal Division

The RAD allowed the appeal because the RPD breached procedural fairness by failing to explain determinative issues and legal concepts to a self-represented claimant, failing to elicit necessary evidence regarding nexus to Convention grounds, and failing to permit completion of submissions after reviewing new evidence; these defects could not be cured on appeal and required remittal; the RAD directed the RPD not to consider the audio recording or transcript of the initial RPD hearing.

Source excerpt

• Convention refugee
• Imputed political opinion
• Breach of procedural fairness
• Remittal

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TB9-18510

Court

Refugee Appeal Division

The RAD allowed the appeal because the RPD committed procedural unfairness by failing to adequately explore determinative issues for a self‑represented claimant and by not offering the Appellant an opportunity to submit corroborating documentation after the hearing; this failure affected the Appellant's right to be heard and the credibility assessment, requiring remittance to the RPD for redetermination.

Source excerpt

• Credibility assessment
• Corroborating evidence
• New evidence on appeal
• Breach of procedural fairness
• Remittance

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DP v Canada Employment Insurance Commission

Court

Social Security Tribunal of Canada

Because the General Division proceeded in the claimant's absence after the Notice of Hearing was not effectively delivered, the claimant was denied the right to be heard; accordingly an extension of time and permission to appeal were warranted, the appeal succeeds, and the matter is remitted to the General Division for reconsideration by a different member.

Source excerpt

• Extension of time
• Permission to appeal
• Service of process
• Right to be heard
• Remittal

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D. R. v. Canada Employment Insurance Commission

Court

Social Security Tribunal of Canada

The Appeal Division allowed the appeal because, after listening to the GD hearing recording, it concluded the General Division breached natural justice by allowing the employer to monopolize and repeatedly interrupt the Claimant without intervening, depriving the Claimant of the opportunity to fully present his case and to cross-examine; the matter is remitted to the General Division for reconsideration.

Source excerpt

• Just cause for voluntary leaving
• Fair hearing
• Natural justice
• Reconsideration to general division
• Procedural fairness

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MB9-13385

Court

Refugee Appeal Division

The RAD upheld the RPD's adverse credibility findings based on material omissions and contradictions, concluded there was no breach of procedural fairness, found no requirement to apply s.97(1) after a credibility finding, determined the minor US citizen faced no risk in the United States, and thereby dismissed the appeal under s.111(1)(a) IRPA.

Source excerpt

• Credibility
• Procedural fairness
• Refugee protection
• Risk assessment
• Family separation

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TB9-08696

Court

Refugee Appeal Division

The RAD set aside the RPD's negative determination because the RPD breached natural justice by failing to canvass and put adverse credibility concerns to the Appellants (notably concerning the alleged attack and the meaning of 'laying low'), and some RPD findings were not supported by the record; although the Appellants' failure to claim asylum in the United States undermined subjective fear, that factor alone was insufficient to justify rejection, and the matter is referred to the RPD for redetermination by a differently constituted panel pursuant to s.111(1)(c) IRPA.

Source excerpt

• Credibility
• Subjective fear
• Procedural fairness
• Failure to claim asylum in the united states
• Referral for redetermination
• Manner of questioning / interruption

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