Effective Date: July 7, 2022
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This policy applies to the exercise of the Chairperson's authority to issue written guidelines and to identify decisions as jurisprudential guides for members of the Immigration and Refugee Board (IRB or the Board).Footnote 1
Guidelines and jurisprudential guides are complementary tools, the purpose of which is to promote consistency, coherence, and fairness in the treatment of cases at the Board. Guidelines are issued by the Chairperson to set out principles for adjudicating and managing cases. Jurisprudential guides are IRB decisions identified by the Chairperson that contain persuasive reasoning, are generally well-written, provide a detailed and clear analysis, and consider relevant issues in the case.
This policy establishes:
- a framework that guides the exercise of the Chairperson's authority;
- the effect of guidelines and jurisprudential guides;
- the process for deciding to issue a guideline or identify a decision as a jurisprudential guide;
- the process for revising a guideline or revoking a guideline or a jurisprudential guide.
Policy on the Use of Chairperson's Guidelines and Jurisprudential Guides replaces the previous
Policy on the use of Chairperson's Guidelines (2003) and the
Policy on the Use of Jurisprudential Guides (2003; amended 2016 and 2019).
3. Statutory authority
Paragraph 159(1)(h) of the
Immigration and Refugee Protection ActFootnote 2 (IRPA or the Act) provides that the Chairperson “may issue guidelines in writing to members of the Board and identify decisions of the Board as jurisprudential guides, after consulting with the Deputy Chairpersons, to assist members in carrying out their duties”.
4. Leading case law
Thamotharem, the Federal Court of Appeal recognized the importance of guidelines for achieving consistency in decision-making, particularly for large tribunals such as the IRB.Footnote 3
CARL, the Federal Court of Appeal recognized the Chairperson's broad authority to identify decisions as jurisprudential guides, as long as their purpose is to assist members in carrying out their duties.Footnote 4
Vavilov, the Supreme Court of Canada reiterated that administrative tribunals should be concerned with consistency of decision-making, as those affected by administrative decisions are entitled to expect that like cases will generally be treated alike and that outcomes will not depend merely on the identity of the individual decision maker.Footnote 5
5. Circumstances for exercise of Chairperson's authority
The Chairperson considers exercising authority to issue guidelines or identify a decision as a jurisprudential guide in the following circumstances, as described more fully below: (i) to address specific legal issues, (ii) to provide guidance on questions of mixed fact and law and on facts, (iii) to provide guidance on procedural issues, or (iv) to address any other issue of importance to the Board.
5.1 To address specific legal issues
The need to address specific legal issues has various components, for example: to address an emerging issue, to resolve an ambiguity in the law, to resolve inconsistency in decision-making, or to establish legal interpretations as preferred positions.
5.2 To provide guidance on questions of fact or mixed law and fact
In addition to addressing issues that are strictly legal in nature, guidelines and jurisprudential guides may also provide guidance on a question of fact or mixed law and fact.Footnote 6
Jurisprudential guides could address, for example, certain aspects of country conditions in a refugee source country. However, country conditions, by their very nature, are bound to change, and the decision to designate a jurisprudential guide which provides guidance on country conditions should be taken with the utmost caution.Footnote 7
5.3 To provide guidance on procedural issues
Guidelines may be used to provide guidance on procedural issues. The Chairperson's guideline‑issuing and rule‑making powers overlap. That the subject of a guideline could have been enacted as a rule of procedure issued under paragraph 161(1)(a) of the IRPA will not normally invalidate it.Footnote 8
Guidelines could be issued for specific procedural issues, such as the scheduling of proceedings, or they could be quite general in nature, such as providing broad guidance on how hearings are to be conducted.
Jurisprudential guides could also be identified to address procedural issues.
5.4 To address any other issue of importance to the Board
Most issues would fit within one or more of the previous three categories. However, the Chairperson's statutory authority to issue guidelines and identify decisions of the Board as jurisprudential guides “to assist members in carrying out their duties” is not constrained by those categories.Footnote 9
6. Effect of guidelines and jurisprudential guides
Chairperson's guidelines and jurisprudential guides are not binding and members remain free to reach their own conclusions based on the facts of the case.
are expected to follow guidelines unless compelling or exceptional reasons exist to depart from them.
are expected to follow the reasoning in a decision identified as a jurisprudential guide to the extent set out in the accompanying policy note, where the facts underlying the jurisprudential guide are similar to those in the case being decided.
must explain in their reasoning why they are not following a guideline or a jurisprudential guide when, based on the facts or circumstances of the case, the member would otherwise be expected to follow the guideline or jurisprudential guide.Footnote 10
7. Consultation process
Before the Chairperson issues or revises guidelines, identifies a decision as a jurisprudential guide, or revokes a guideline or jurisprudential guide, the Chairperson must consult with the Deputy Chairpersons, as required by paragraph 159(1)(h) of the Act.
Other consultation, internal or external to the IRB, may also take place at the discretion of the Chairperson and to the extent that the Chairperson considers appropriate for the nature of the guideline or the jurisprudential guide.
8. Revising or revoking guidelines or jurisprudential guides
Guidelines and jurisprudential guides remain in effect unless the Chairperson revokes them.
The Board will continue to monitor developments such as documentation of country conditions, decisions of the Board and decisions of higher courts to assess their impact on the guidelines and jurisprudential guides.
The Chairperson may, after the consultation process described in section 7:
- revise or revoke guidelines, for example, when the guidelines become inconsistent with a subsequent higher court decision. In that case, the guidelines will either be revised to be consistent with the higher court decision, or revoked; and
- revoke a jurisprudential guide when, for example, a higher court subsequently overturns the underlying decision, country conditions have changed to a point where the reasoning in the jurisprudential guide no longer assists members or there is a change in caselaw.
9. Public communication of guidelines and jurisprudential guides
The issuance of guidelines and the identification of jurisprudential guides, or their revocation, will be communicated to the public on the IRB's website and in any other manner that the IRB considers appropriate.
Parties and their counsel will therefore be expected to know the content of guidelines or jurisprudential guides that have been issued.
For information, contact:
Policy, Engagement and Parliamentary Affairs Immigration and Refugee Board of Canada Canada Building (Minto Place)
344 Slater Street Ottawa, Ontario K1A 0K1