Policy no. 2003-02
Effective Date: March 21, 2003
1. Background
This policy governs the exercise of the Immigration and Refugee Board's (IRB, or the Board) option to seek leave to intervene in a proceeding before a Higher Court. This policy establishes:
- a framework that guides in which cases the exercise of that option may be carried out, and
- the process for deciding whether or not the Board should intervene in any particular case.
Decisions of the Immigration Division, the Immigration Appeal Division and the Refugee Protection Division are all subject to judicial review, with leave, by a Higher Court, namely, the Federal Court - Trial Division. Decisions of that Court are subject to further appeal to the Federal Court of Appeal, if the Trial Division certifies a question, and then to the Supreme Court of Canada, with leave.
The IRB must follow decisions of the Federal Court and the Supreme Court of Canada.
1.1 Adjudication Strategy
Traditionally, administrative tribunals have been allowed to intervene in Higher Court proceedings where jurisdictional or operational matters have been in issue.
However, one aspect of the IRB's increased focus on strategic adjudication of its cases may include a need for the IRB to seek leave to intervene in more of its cases before the Higher Courts.
The IRB's ability to establish a consistent and coherent body of jurisprudence depends, in part, on the establishment of a coordinated and rational approach to its adjudicative function. To be most effective, each division must establish a selective and strategic approach to the adjudication of issues. This adjudication strategy is aimed at identifying the relatively small number of cases that merit the division's particular attention because they are cases that have the potential to shape the Board's jurisprudence. These cases are the exceptional, as opposed to the routine, cases.
A number of different options are available that, taken together, constitute the tools that the Board has at its disposal to support its adjudication strategy. These are not mutually exclusive options, and any or all of them could be exercised at any particular time. These tools include the following:
- Chairperson's guidelines
- Identification of decisions as jurisprudential guides
- Identification of decisions as persuasive decisions
- Use of three-member panels (Refugee Protection Division and Immigration Appeal Division)
- Conduct of a lead case
- Consultation amongst members on draft decisions in accordance with the principles in Consolidated-Bathurst Packaging Ltd.v. International Woodworkers of America, Local 2-69, [1990] 1 S.C.R. 282
- The Board seeking leave to intervene in a Higher Court proceeding
Accordingly, the IRB has developed this policy which governs the circumstances in which the Board may seek leave to intervene in Higher Court proceedings.
2. When the Board Should Consider Seeking Leave to Intervene
The following are the key underlying principles that govern when the Board should consider seeking leave to intervene in a Higher Court proceeding:
- To support the Board's adjudication strategy on a legal or policy issue, or
- To make submissions on an issue that is of institutional interest to the Board. This means either a jurisdictional issue or an issue the outcome of which may have a significant impact on the operations of the Board.
Therefore, the Board's purpose in seeking leave to intervene in any case is to explain to the Court the Board's adjudication strategy, to make submissions on jurisdiction, or to explain operational considerations.
The Board will consider seeking leave to intervene in any particular case where, for example:
- The Board's interests may not otherwise be included in the record before the Court. The Board would be seeking to assist the Court by ensuring that it has before it a complete record.
- The Board has a viewpoint to submit to the Court that is different from that of the parties.
- The Court should have the benefit of the Board's expertise or assistance on a particular issue or matter before the Court. For example, in order to explain the record or the Board's internal workings and procedures.
In any case in which the Board seeks leave to intervene, the impartiality of the Board must be maintained. Therefore, the Board cannot defend, or appear to be defending, the merits of the decision under review.
3. Criteria for Selecting a Case
The selection of a suitable case in which to seek leave to intervene will be made on a case-by-case basis, taking into account the underlying principles set out in section 2 above and the resource implications involved.
This selection will emerge from each division's adjudication strategy. Legal Services will continue tracking pending Higher Court cases. No new tracking of IRB cases is planned for the purpose of Higher Court intervention.
4. Approval by the Executive
The General Counsel and the relevant Division Head shall, after appropriate consultation (including with the Director General of the Policy, Planning and Research Branch), make a recommendation to the Chairperson and the Executive Director that the Board should seek leave to intervene in a particular case. The Chairperson shall make the final decision.