Canadian Refugee Procedure/RPD Rule 24 - Conferences

RPD Rule 24 - Conferences
The text of the relevant rule reads: Conferences

Requirement to participate at conference 24 (1) The Division may require the parties to participate at a conference to fix a date for a proceeding or to discuss issues, relevant facts and any other matter to make the proceedings fairer and more efficient.

Information or documents (2) The Division may require the parties to give any information or provide any document, at or before the conference.

Written record (3) The Division must make a written record of any decisions and agreements made at the conference.

Conferences may be held in the absence of the claimant
A claimant need not be present for any conferences. The Board's Chairperson Guidelines 7: Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division discusses this and provides guidance on this point. The guidelines state that a conference should be held only where it would be more practical or efficient to consider issues before the actual hearing or where it may be more appropriate to discuss certain sensitive issues without the presence of the claimant. For example, where there are complex legal issues to be discussed, a conference may be held to go over matters related to procedure or for questions related to the evidence to be settled. One example of this is where the Board schedules a telephone conference prior to a hearing date in order to discuss issues of scheduling or procedural orders that parties are requesting the Board make.

A particular type of pre-hearing conference is one held, in the words of the Chairperson's Guideline 7, "just before the hearing". The guidelines state that a brief conference with the parties will be held in this way only where it would help make the proceedings fairer and more efficient. An example of such a conference discussed in the guideline is where the refugee claimant has been identified as vulnerable and counsel and the claimant will meet, without the claimant being present, in order to discuss appropriate procedures for the hearing in light of the claimant's vulnerability. The guidelines go on to note that "when the claimant is represented, the member and counsel will participate, but the claimant will not usually be present." However, they go on to note that "a represented claimant may be present if the member decides it would be useful." The better practice is likely for Members to ordinarily have claimants in the room during such pre-hearing conferences, with simultaneous interpretation provided as necessary. The discussions occurring relate, after all, to their claim. That said, this is a matter of the Member's discretion and at times excluding a claimant will be appropriate.

Conferences should not become a hearing in the claimant's absence
The Board's Chairperson Guidelines 7 state that "A conference should be held only where it would be more practical or efficient to consider such issues before the actual hearing or where it may be more appropriate to discuss certain sensitive issues without the presence of the claimant." There will exist a point where a conference could come to delve into the substance of a case to such an extent that it involves submissions going to the merit of the case moreso than a matter appropriately considered before the actual hearing. For example, where a conference continues for a very lengthy time and where the Member hears and debates extensive arguments from the parties on the central issues of the claim without the attendance of the claimant, it may be the case that it virtually becomes a hearing on the merits, instead of a pre-hearing conference. Such an extensive conference regarding the determinative issues of a refugee claim taking place without the presence of a claimant, even where there is the implied consent of counsel, may not be an acceptable use of this conference provision.

A proper pre-hearing conference will not lead to a Member being seized of a matter
The Member who conducts a pre-hearing conference may differ from the Member who ultimately presides over the hearing. Where the matters discussed do not go beyond those appropriate for a pre-hearing conference, the Member who conducts the pre-hearing conference will not ordinarily be seized of the case. For more detail on this concept, see: Canadian Refugee Procedure/The right to an independent decision-maker.

Members should both provide an oral summary and make a written record of any decisions and agreements made at pre-hearing conferences
As per RPD Rule 24(3), "The Division must make a written record of any decisions and agreements made at the conference." If the claimant was not present at a pre-hearing conference, then, before the hearing starts, the Board's Chairperson Guidelines 7 state that the Member will summarize for the claimant what was discussed and what instructions the Member gave at the conference. The Member will also make a written record of any decisions and agreements made at the conference. As such, the oral summary at the hearing is something that Members are expected to provide in addition to, not instead of, the requirement in Rule 24(3) that a written record of decisions and agreements be made (often this can be practically accomplished by commenting on the pre-hearing conference in the reasons for decision, but in other cases it will be more practical to provide this written record as a set of interim reasons). This provision requiring an oral summary in the Chairperson Guidelines is just that, a guideline, and not a legal requirement. It appears to be a good practice where a pre-hearing conference from which the claimant was excluded occurs just before the hearing and consequently counsel may not have had an opportunity to go over the decisions made at the pre-hearing conference with the claimant. In contrast, the guideline would appear not to apply to, say, a telephone pre-hearing conference held weeks prior to the hearing commencing and where the decisions made at the pre-hearing conference have already been reduced to writing and received by the parties.