Last Updated on October 23, 2019 by Steven Meurrens
Rule 43(1) of the Immigration Division Rules, SOR/2002-229 states:
Application to change the date or time of a hearing
43 (1) A party may make an application to the Division to change the date or time of a hearing.
(2) In deciding the application, the Division must consider any relevant factors, including
(a) in the case of a date and time that was fixed after the Division consulted or tried to consult the party, the existence of exceptional circumstances for allowing the application;
(b) when the party made the application;
(c) the time the party has had to prepare for the hearing;
(d) the efforts made by the party to be ready to start or continue the hearing;
(e) the nature and complexity of the matter to be heard;
(f) whether the party has counsel;
(g) any previous delays and the reasons for them;
(h) whether the time and date fixed for the hearing was peremptory; and
(i) whether allowing the application would unreasonably delay the proceedings or likely cause an injustice.
Duty to appear at the hearing
(3) Unless a party receives a decision from the Division allowing the application, the party must appear for the hearing at the date and time fixed and be ready to start or continue the hearing.
In Cabrera v Canada (Citizenship and Immigration), 2010 FC 709 the Federal Court found that the Immigration Division needs to consider all relevant factors. Justice Russell wrote:
Be that as it may, it seems to me that the ID was obliged to consider the Applicant’s adjournment request in accordance with section 43 of the Immigration Division Rules. Section 43(2) makes it mandatory for the ID to consider “any relevant factors” and then lists the factors that must be considered in all cases. If I look at the more obvious “relevant factors” in the present case, the following suggest themselves for consideration:
a. The length of time for which the adjournment was being sought was very short;
b. The adjournment would have had no detrimental effect on the immigration system;
c. The adjournment would not have needlessly delayed, impeded or paralyzed the conduct of the inquiry;
d. The Applicant herself was not to blame for any delay. Her counsel offered a legitimate reason for needing the intercede opinion and she also indicated that she had made efforts to get the letter on time: “I kept asking her when I could receive it”;
e. Another relevant factor would be that any adjournment would not have resulted in any prejudice to the Minister or unreasonably delay the proceedings, while the failure to grant the adjournment prevented the Applicant from raising her constitutional and Charter arguments, and the fact of her non-compliance with the time limits became a significant aspect of the Decision.
I would also add that, in the circumstances, there were some other obvious factors – e.g. no prejudice to the Minister but extreme prejudice to the Applicant given the ID’s reasons for rejecting her constitutional and Charter arguments; no real detrimental impact upon the system and/or the particular proceedings – that should also have been considered on the facts at hand.
In Li v. Canada (Citizenship and Immigration), 2018 FC 478, Justice Boswell stated that it would be unreasonable to not adjourn an Immigration Division hearing where it was possible that the criminal law that an individual was inadmissible for would be declared unconstitutional. He wrote:
I begin by noting that subparagraph 7(2) (b) (iii) of the CDSA has been declared unconstitutional in R v Serov, 2017 BCCA 456, 143 WCB (2d) 252 [Serov]. Serov was decided on December 28, 2017, and therefore was not before the ID. It is, of course, not a foregone conclusion that subparagraph 7(2) (b) (iii) will likewise be found unconstitutional by the OCA. But if the OCA follows the decision in Serov and declares that subparagraph 7(2) (b) (iii) of the CDSA is unconstitutional, the Applicant will have nonetheless lost his right of appeal to the IAD based on an unconstitutional mandatory minimum sentence provision. In my view, the ID did not seriously or sufficiently consider the possibility of adjourning the proceedings in order to avoid this outcome. This was not only unfair to the Applicant but an unreasonable determination as well.