Canadian Refugee Procedure/RPD Rules 31-43 - Documents

Rules 31-43 are in a section of the rules entitled "documents" and they concern how to provide documents, the language(s) that documents may be in, the process that the Division should follow when it itself wants to provide documents, the criteria that the Division shall use to determine whether to accept documents, how the Division should decide whether or not to accept documents that have been submitted late, how documents may be provided both to the Division and to other parties, the requirement to provide original documents at the hearing, and the process for providing additional documents as evidence after a hearing. In short, these rules 31-43 concern the process by which a claimant is to submit a document to the Board. For a discussion of what documents a claimant is obliged to submit to the Board, see Rules 3-12 and the summary of those obligations at Canadian Refugee Procedure/Documents

RPD Rule 31 - How to provide documents
The text of the relevant rules reads: Documents

Form and Language of Documents

Documents prepared by party 31 (1) A document prepared for use by a party in a proceeding must be typewritten, in a type not smaller than 12 point, on one or both sides of 216 mm by 279 mm (8 1⁄2 inches x 11 inches) paper.

Photocopies (2) Any photocopy provided by a party must be a clear copy of the document photocopied and be on one or both sides of 216 mm by 279 mm (8 1⁄2 inches x 11 inches) paper.

List of documents (3) If more than one document is provided, the party must provide a list identifying each of the documents.

Consecutively numbered pages (4) A party must consecutively number each page of all the documents provided as if they were one document.

What is a "document" as the term is used in these rules?
The term "document" is not explicitly defined in these rules. No definition, for instance, is provided in the definitions section of the rules at Rule 1 (Canadian Refugee Procedure/Definitions). As with any exercise of statutory interpretation in Canada, the proper scope and meaning of the term "document" in these rules will thus emerge by applying Driedger’s modern approach to statutory interpretation, namely that "the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament". Doing so, the following principles emerge:


 * The term "documents" is defined broadly and is not confined to paper documents: When the current version of the RPD Rules were drafted in 2012, they were drafted against the background of the wording of the prior Rule 27 under the 2002 Refugee Protection Division Rules and the caselaw that had interpreted that version of the rules. One such case was Cortes v. Canada, which, when interpreting the previous version of this rule in the 2002 RPD Rules, had endorsed the following broad conception of what a document is within the meaning of the RPD Rules: "The Commentaries to the Refugee Protection Division Rules provide that “document” includes “any correspondence, memorandum, book, plan, map, drawing, diagram, picture or graphic work, photograph, film, microform, sound recording, videotape, machine‑readable record, and any other documentary material, regardless of physical form or characteristics, and any copy of those documents”". This interpretation continues to be persuasive, notwithstanding that the Commentaries to the Refugee Protection Division Rules are no longer made available by the Board. The caselaw applying to the previous rule would therefore appear to continue to be applicable to the updated one, as there was no indication that the 2012 amendments to the rules intended to depart from the previous interpretations and practices. Indeed, decisions under the new rules continue to construe the term "document" broadly, as with the following 2017 Refugee Appeal Division decision which concludes that "documents" include “electronic documents”, as that term is defined in section 31.8 of the Canada Evidence Act ("electronic document means data that is recorded or stored on any medium in or by a computer system or other similar device and that can be read or perceived by a person or a computer system or other similar device. It includes a display, printout or other output of that data."). The Interpretation Act includes the following definition: " writing, or any term of like import, includes words printed, typewritten, painted, engraved, lithographed, photographed or represented or reproduced by any mode of representing or reproducing words in visible form. (écrit)". This definition has been considered in other contexts that have concluded that written documents may include those in electronic format. Furthermore, the Federal Court has held that non-paper sources of evidence, such as DVDs, are admissible before administrative tribunals in other circumstances: Grenier v Canada.
 * The term "document" as used in these rules is not limited to documents provided for evidentiary purposes, but also includes other types of documents: Where the term "document" is used in these rules without any qualification, it should apply to all documents, whether or not those documents are evidentiary ones or other types of documents such as written submissions. The term "documents" as used in these rules includes documents prepared by a party as per Rule 31(1), which sets out the format required for any "document prepared for use by a party in a proceeding". RPD Rule 37 specifies that a "document", as the term is used in these rules, includes "a notice or request in writing". Some of the RPD rules apply only to documents used as evidence (for example Rule 43 applies only where "a party wants to provide a document as evidence", which the courts have held excludes situations where documents are provided for non-evidentiary purposes, such as written submissions ( Yared Belay v. Canada, paras. 41-42 ) and caselaw (Petrovic v. Canada, para. 11 )). By necessary implication, the fact that other rules do not include this type of limitation on the term "documents" means that those rules apply to all documents submitted (notices, requests, submissions, caselaw, etc.), not simply evidentiary ones.

What is a "proceeding" as the term is used in these rules?
Many of these rules relate to documents used in "a proceeding", for example Rule 31(1) specifies that "a document prepared for use by a party in a proceeding" must meet the specifications set out therein. Are all documents submitted to the Refugee Board by a claimant or protected person (where there is an application to vacate or cease their protection, say) ones that are being used in a proceeding? Generally speaking, that is the case, as discussed in the following commentary below: Canadian Refugee Procedure/Documents.

The evidence to be replied upon should be submitted so that it is part of the tribunal's record
Rule 31(4) provides that a party must consecutively number each page of all of the documents provided as if they were one document. One of the policy implications of this is that documents and evidence relied upon should generally be submitted and placed on the record so that they are available for any appeal or review of the Division's decision. In this way, the Division should not generally accept hyperlinks to evidence given that the content at the hyperlink may change. The Federal Court holds that "citations are not evidence before the Court" and the Division should conclude likewise. The following analysis from Iribhogbe v. Canada may be considered persuasive: "With respect to the website links and excerpts from these webpages, the RAD noted that the Applicant did not provide any documentation as new evidence in his Rule 29 application, as required by the RAD Rules. Instead, he included references to forty (40) Internet web links and select excerpts from webpages. The RAD indicated that any submission of new evidence must be in printed form, not a simple reference to an Internet link. The RAD further indicated that, in the absence of the actual documents containing the excerpts, it was unable to ascertain the publication date of the information to determine if the documents could have been provided with the Applicant’s appeal record."Similarly, in Urbieta v. Canada the RAD noted the RPD could not reasonably be expected to take a claimant's cellphone into evidence and proferring one's cellphone at the hearing is not a substitute for having submitted the documents prior to the hearing as required by the RPD Rules, so that the evidence may be accepted and placed on the record.

RPD Rule 32 - Language of Documents
Language of documents — claimant or protected person 32 (1) All documents used by a claimant or protected person in a proceeding must be in English or French or, if in another language, be provided together with an English or French translation and a declaration signed by the translator.

Language of Minister’s documents (2) All documents used by the Minister in a proceeding must be in the language of the proceeding or be provided together with a translation in the language of the proceeding and a declaration signed by the translator.

Translator’s declaration (3) A translator’s declaration must include translator’s name, the language and dialect, if any, translated and a statement that the translation is accurate.

Commentary
The following commentary applies to RPD Rules 32(1)-(3) collectively. It is then followed by more specific commentary pertaining to each of the specific subsections of Rule 32.

Declining to accept untranslated documents
The proper procedure to follow where a claimant attempts to admit documents that are untranslated is ordinarily that followed by RAD Member Normand Leduc when he wrote as follows: "Exhibit P-3 is not translated into English or French and, consequently, I cannot accept it as evidence." This is so as the language of this rule is described as "mandatory", including through its use of the word "must", and that countervailing considerations such as cost and time constraints are not generally valid reasons for non-compliance with the rule that documents be translated. Furthermore, the Federal Court has stated that it is not the tribunal's role to ask an interpreter present in the hearing room, if any, to translate a claimant's narrative: "The burden of being ready to proceed at a hearing is on the applicant, not the tribunal. Placing an obligation on the tribunal to ensure that the applicant's PIF is complete is similar to transferring the applicant's burden to the tribunal. The Court feels that the tribunal did not have an obligation to ask the interpreter present in the courtroom to translate the applicant's PIF to correct his deficiencies, as the applicant had suggested. It is the applicant's responsibility to prepare his claim file, and it is not up to the tribunal to fix his deficiencies."See RPD Rule 6(3) on the requirement for the Basis of Claim form to have an interpreter's declaration: Canadian Refugee Procedure/Information and Documents to be Provided.

Declining to accept a document that has only been translated in part
The above logic applies equally where only a portion of the document has been translated. Member Edward Bosveld of the Refugee Appeal Division concluded that generally, a translation of a document should be complete, not only a selective translation of isolated words in a document on which a party wishes to rely:"Here, the Minister has not provided a translation of the Albanian-language wording on the Facebook pages, and yet seeks to rely upon that wording to establish that the Respondent’s father is employed as a XXXX XXXX XXXX, which the Minister argues is not consistent with self-confinement at home. The Respondent disputes this contention, noting that the Minister has only translated selective words, and he disagrees that the words relate to his father’s employment. The Minister has not complied with the requirement to provide a signed translator’s declaration along with the translation of the Albanian words on the Facebook posts. Further, even if such a declaration had been provided, the RAD would still have some difficulty because only a partial translation has been provided. The translation provided does not comply with the Rules, is not complete, and the RAD cannot determine whether it is accurate. The RAD therefore declines to admit the Google translations into evidence."But see Islam v. Canada, in which the Federal Court held that it was unreasonable for the RAD to accord no weight to new evidence on the sole basis that the translated version contains a caption that was absent in the untranslated version. This was so as the caption did not provide any information that was not already present in the translation, and giving weight to the evidence could potentially undermine the conclusion that the agents of persecution were unconnected with the Awami League.

Accepting untranslated evidence into evidence, but weighing it based on the fact that it is untranslated
The Board also has the power to admit such evidence into the record through its power to vary the rules per Rule 70 of the RPD Rules. Doing so and accepting untranslated documents from a claimant in a case where the Minister is not intervening does not generally breach procedural fairness.

Normally such evidence will be assigned little or no weight, though there may be circumstances where more weight can be given to the evidence. For example, in interpreting its analogous rule, the Immigration Appeal Division commented that German-language documents intended to show the extent of the applicant's medical treatment could be accepted into evidence, though given low weight:"The appellant provided approximately 72 pages of documents as evidence. The majority of the documents were in the German language. Minister’s counsel objected to admission of those documents on the basis that they did not comply with Immigration Appeal Division Rule 29(1). The German language documents were not translated into either official language. The appellant explained that the purpose of the documents was to show the extent of his dental treatment. The documents were allowed into evidence but the appellant was advised little or no weight could be attached to them since they were not translated into one of Canada’s official languages."The logic and practicality of admitting such untranslated documents was illustrated by the Immigration Appeal Division, when interpreting its analogous rule, as follows:"The appellant provided copies of chat messages for a select period. For the most part, those messages are in a foreign language. Counsel for the Minister of Citizenship and Immigration submitted that the messages should not have been admitted as evidence because they do not conform to IAD Rule 29(1). The age of smartphones, internet communications and social media creates a dilemma. If a couple is regularly communicating by text, chat messages, Facebook or similar instant messaging, disclosure of all their messages would bog down hearings with mountains of paper. The cost of translation would be prohibitive. On the other hand, providing the messages without translation limits their probative value. Providing only a sample may lead to the inference that the remaining messages contain evidence adverse to the appellant’s case. There is no easy solution. The appellant has attempted to overcome the problem by providing a statutory declaration explaining the evidence. That is of some assistance. I give the evidence some weight, but the weight I give is reduced by the fact that the messages are in a foreign language."See also Elias v. Canada, in which the Federal Court commented on an IAD decision that had discounted evidence on the basis that it was untranslated. The court commented that the fact that the evidence was untranslated was not relevant to its probative value, as follows:"The IAD found that there was insufficient evidence that Ms. Elias and Mr. Baiade are in frequent communication. Yet, the record contains about 50 pages of screen shots showing communications by WhatsApp or other phone and messaging applications, apparently in 2015 and 2019. The IAD discounted this evidence because it was in Arabic and not translated. Yet, what is relevant is the frequency of communication, not its contents. ... While these issues may not independently render the IAD’s decision unreasonable, they further erode its reasonableness."When considering this case, it should be noted that the IAD's equivalent rule, IAD Rule 29, is very similar to the above RPD Rule ("All documents used at a proceeding by a person who is the subject of an appeal must be in English or French or, if in another language, be provided with an English or French translation and a translator’s declaration").

This translation requirement applies to video and audio evidence submitted to the Board, which must also be transcribed
Claimants regularly submit audio and video evidence to the Board. It must be transcribed and that transcription should then be translated into English or French. The Federal Court confirmed this in Cortes v. Canada when interpreting the previous version of this rule:"Rule 28 provides that “[a]ll documents used at a proceeding must be in English or French or, if in another language, be provided with an English or French translation and a translator’s declaration”. Moreover, the Commentaries to the Refugee Protection Division Rules provide that “document” includes “any correspondence, memorandum, book, plan, map, drawing, diagram, picture or graphic work, photograph, film, microform, sound recording, videotape, machine‑readable record, and any other documentary material, regardless of physical form or characteristics, and any copy of those documents”. Here, the DVD is a “document” that was not translated as required by the Rules. The panel was therefore entitled to attach no probative value to it."The Refugee Protection Division has confirmed that the same reasoning applies to audiovisual and other evidence submitted under the current version of the RPD Rules. The guidebook Refugee Hearing Preparation: A Guide for Refugee Claimants from refugeeclaim.ca under the question "Do videos, websites, or other electronic documents need to be translated?" states that "Yes! All evidence that you obtain must be translated into English or French. Videos must be transcribed." This reflects the best, and usual, practice.

RPD Rule 32(1) - Language of claimant or protected person's documents
Language of documents — claimant or protected person 32 (1) All documents used by a claimant or protected person in a proceeding must be in English or French or, if in another language, be provided together with an English or French translation and a declaration signed by the translator.

This rule applies to documents used by a claimant or protected person in a proceeding, not to all documents provided
Claimants are obliged to provide all relevant documents in their possession at the time that they provide their BOC Form. These documents need not be translated: Canadian Refugee Procedure/Information and Documents to be Provided. In contrast, documents provided at a later time must be translated since the only reason for their provision is that the claimant intends to rely upon them at the hearing, and hence they are to be "used" within the meaning of Rule 32(1).

Claimants need not provide documents in the language of the proceeding, only in English or French
Claimants elect a language for their proceeding, either English or French. That said, per Rule 32(1), they are not limited to submitting documents in that language. Unlike the Rule for the Minister at 32(2), claimants are solely required to provide their documents in English or French (or, for documents in another language, with a translation into either English or French), regardless of what the language of the proceeding is. RAD Member Douglas Fortney commented on this issue as follows: "In this case where the RPD member could not understand a document provided in French, the correct procedure would have been to have accepted the document into evidence and if necessary obtain an English language translation. Alternatively, it could have been considered to have obtained the services of a French – English interpreter who could have assisted in understanding the contents of the document at the RPD hearing."This is reinforced by the IRB Policy Statement on Official Languages and the Principle of the Substantive Equality of English and French, which states that "All persons in the hearing room are free to speak the official language of their choice, including counsel for the subject of the proceeding. At the request of any party to the proceeding, the IRB will make arrangements to provide interpretation from one official language to the other, taking into consideration third language interpretation may also be required for the case." This has legislative support in section 14 of the Official Languages Act, which provides:"Official languages of federal courts 14) English and French are the official languages of the federal courts, and either of those languages may be used by any person in, or in any pleading in or process issuing from, any federal court."The Board is considered to be a "federal court" based on the way that term is defined in the Official Languages Act and is thus bound by this provision: Canadian Refugee Procedure/Decisions As such, a claimant may provide documents (be they letters, correspondence, submissions, notices, or other evidentiary or non-evidentiary documents - see the broad definition of what is considered to be a "document" above Canadian Refugee Procedure/Documents) provided that they meet the Rule 32 requirements regarding language.

What should a claimant do if they cannot afford to translate all of their documents?
Claimants are responsible for absorbing the cost of translating all written materials into either French or English. At times, claimants cannot afford to translate all of their documents. This may come up where a claimant is unrepresented (and thus does not have access to a translation budget from Legal Aid), where a claimant has sufficient means to afford private counsel but nonetheless is not able to afford having all of their documents translated because the documents are particularly voluminous, and where a claimant is entitled to legal aid but the translation budget provided by legal aid has been insufficient in the context of the case. In such a situation the claimant should advise the Division of the situation and be able to show that they took all reasonable steps to have the documents translated:


 * Advise the Division in writing of the existence of the additional documents and the cost issue preventing them from being translated: The guidebook Refugee Hearing Preparation: A Guide for Refugee Claimants from refugeeclaim.ca recommends that a claimant "Tell the [RPD] in writing that you have other documents that you could not afford to translate."
 * Seek out a friend, volunteer, family member, etc. to translate the documents: The claimant should be prepared to show that they made reasonable efforts to have the documents translated. The rules do not require that the translation be done by a professional: Canadian Refugee Procedure/Documents.
 * Apply to legal aid (for additional funds for translation): For example, the BC Legal Services Society pre-authorizes translation costs of up to $361 (1,900 words) for each immigration representation contract. Counsel may apply for authorization to translate additional documents in particular cases. Similarly, in Ontario, lawyers with RPD certificates from Legal Aid can bill Legal Aid online for translation of up to 3500 words. For documents longer than 3500 words, lawyers can submit a request for additional disbursements for translation.

Furthermore, the claimant should consider alternative ways to put the information in question in front of the Member:


 * Translate the most important documents: Instructions to claimants in public documents such as the guidebook Refugee Hearing Preparation: A Guide for Refugee Claimants from refugeeclaim.ca are that "Translation can be very expensive. If you can’t afford to translate everything, choose the most important documents."
 * Have only portions of the documents translated: As a half-way measure, the claimant may attempt to have the most important or relevant portions of the documents translated. But see Canadian Refugee Procedure/Documents regarding the Division's discretion to decline to admit such evidence where, for instance, the partial translation properly reduces the weight that can be attached to the document.
 * Make the untranslated documents available at the hearing, including for spot translation: The guidebook Refugee Hearing Preparation: A Guide for Refugee Claimants from refugeeclaim.ca recommends that a claimant "Take [the untranslated documents] to the hearing and explain to the Presiding Member what the documents show." The Member would then have the discretion to ask the interpreter to spot-translate portions of the documents: Canadian Refugee Procedure/Interpreters
 * Provide a statutory declaration or testimony under oath about the contents of the untranslated documents: The Board has the power to waive the rules and admit the untranslated documents into evidence for the purposes of the record (albeit potentially assigning them less weight because of the lack of a translation). For example, the Immigration Appeal Division did just this when interpreting its analogous rule, commenting as follows:

"The appellant provided copies of chat messages for a select period. For the most part, those messages are in a foreign language. Counsel for the Minister of Citizenship and Immigration submitted that the messages should not have been admitted as evidence because they do not conform to IAD Rule 29(1). The age of smartphones, internet communications and social media creates a dilemma. If a couple is regularly communicating by text, chat messages, Facebook or similar instant messaging, disclosure of all their messages would bog down hearings with mountains of paper. The cost of translation would be prohibitive. On the other hand, providing the messages without translation limits their probative value. Providing only a sample may lead to the inference that the remaining messages contain evidence adverse to the appellant’s case. There is no easy solution. The appellant has attempted to overcome the problem by providing a statutory declaration explaining the evidence. That is of some assistance. I give the evidence some weight, but the weight I give is reduced by the fact that the messages are in a foreign language."Finally, the claimant should consider that except for documents that were in their possession at the time that they completed their BOC form, and documents travel and identity documents that they acquire after that time, the rules do not strictly require the claimant to submit all relevant documents in their possession. Instead, the claimant need only submit the documents on which they wish to rely in order to make their case and the claimant must take all reasonable steps to corroborate their claim in the circumstances; see commentary to Rule 34: Canadian Refugee Procedure/Documents. As such, if the rules do not require the evidence in question to be submitted to the tribunal, then the claimant may consider whether they wish to rely on the information and whether the same information may be adduced in another way, such as through witness testimony.

The Board is not obliged to pay for the translation of documents where a claimant cannot afford to do so
The instructions on the Basis of Claim form are "Include certified translations in English or French for all documents in a language other than English or French. You must pay for these translations yourself." The Refugee Appeal Division has held that "the responsibility to provide translations for documents in a foreign language rests with the party using the documents, in this case, the claimant." They went on to note that "the fact that the Board can and sometimes does translate documents that the Board intends to use as evidence is not relevant to the decision of the RPD. The RPD Rules clearly require the “user” (claimant in this case) to provide translations of foreign language documents. The claimant (the Appellant) failed to do so and therefore failed to comply with the rules."

Procedural fairness considerations where a claimant's untranslated documents are not accepted
The above list of possible actions by a claimant concerns circumstances where the claimant has made reasonable efforts to have documents translated and has been unable to do so because of cost. There are other reasons why a claimant may appear at a hearing with untranslated documents, including where they state that they did not know that the documents needed to be translated. Where a claimant's untranslated documents are not accepted, panels of the Division have attempted to accommodate persons, particularly unrepresented claimants, in a number of ways, including by allowing the party to testify to the matters discussed in the documents as an alternative way of adducing the evidence in question (see Huang v Canada) and by allowing the party to submit proper translations of the documents in question post-hearing (though the court has held that the Board need not do so as a matter of procedural fairness, even where a claimant is unrepresented, though this conclusion will likely depend on the probative value of the document in question, see Soares v. Canada).

RPD Rule 32(2) - Language of Minister's documents
Language of Minister’s documents (2) All documents used by the Minister in a proceeding must be in the language of the proceeding or be provided together with a translation in the language of the proceeding and a declaration signed by the translator.

The Minister must use the language of the proceeding in oral and written pleadings
As per Rule 32(2), all documents used by the Minister in a proceeding must be in the language of the proceeding (or be provided together with a translation). A question may arise about the proper scope of the terms "documents" and "proceeding" in the above rule. For example, if a Minister provides a notice of intervention, is it a "document" being used in a "proceeding"?

Meaning of "documents" in this rule
One argument that has been advanced is that the term "documents" as used in this rule only includes documents as evidence, not notices from the Minister. This argument is best rejected based on the observations and citations provided in the section on the definition of "document" above: Canadian Refugee Procedure/Documents.

Meaning of "proceeding" in this rule
As per Rule 32(2), all documents used by the Minister in a proceeding must be in the language of the proceeding (or be provided together with a translation). At times, the argument has been advanced that documents such as a notice of intervention are not being used in a proceeding at the time that they are supplied since "proceeding" is defined in Rule 1 as follows: "proceeding includes a conference, an application or a hearing". Instead, rather than being supplied for use in any one of those listed proceedings, the argument is that it is being supplied for notification purposes. Such semantic quibbling is best avoided and this argument should be rejected for the following reasons:


 * As the Board states in its Policy Statement on Official Languages and the Principle of the Substantive Equality of English and French, "language rights must generally be given a broad and liberal interpretation".
 * The definition of a proceeding in Rule 1 "includes" the listed procedures, but does not indicate that it is limited to them. The RPD Rules are subordinate to the Act, which in s. 170 contemplates a broad and expansive conception of what a Refugee Protection Division "proceeding" is, including that a file-review decision made without any hearing being held is something that happens within a proceeding (s. 170(f)) and that the Board's provision of notice of the hearing to the Minister is also something that happens in a proceeding (s. 170(c)). If notifying the Minister of the hearing is something that happens "in a[] proceeding", then it is hard to see why the Minister's notifications should not similarly be considered to have been provided for use "in a proceeding". Furthermore, in Duale v. Canada the court commented that "proceedings" as used in section 167 of the Act encompass more than the actual hearing before the RPD. Thus, subsection 168(1) allows a division to determine that "a proceeding" before it has been abandoned for such pre-hearing matters as failing to provide required information or failing to communicate with the division as required. See the discussion of the interpretation of the term "proceeding" in the Act at: Canadian Refugee Procedure/Definitions.
 * Furthermore, Ministerial intervention notices must include the details required by Rule 29, and where they do not, the proper remedy is that the notice of intervention will not be accepted. It is clear that the Minister provides a notice of intervention so that it can rely on it at the hearing as proof that it has complied with the rules requiring such notification.
 * Finally, the purpose of such notices has been described as follows: "[Rule 29(2)(a)] exists to compel the Minister to provide notice to the claimant why they have decided to intervene in his or her claim. It is to provide the claimant with fore-knowledge of the concerns the Minister has with the claim, so as to allow the claimant to prepare a response to these concerns. It is an issue of procedural fairness." If this notice were not provided in the language of the proceedings, then the purpose of providing this specific advance information to the claimant about the Minister's concerns could be frustrated.

Ministerial obligations pursuant to Official Languages Act
Finally, the better view of this question is that the Minister is under a legal obligation to provide all documents, including pleadings and other procedural documents, in the language of the proceeding and that this obligation stems from the Official Languages Act, which is considered a quasi-constitutional statute. The Official Languages Act provides that where a federal institution is a party to civil proceedings is shall use the language chosen by the other parties in any oral or written pleadings, except in narrow exceptional circumstances: Language of civil proceedings where Her Majesty is a party

18 Where Her Majesty in right of Canada or a federal institution is a party to civil proceedings before a federal court,

(a) Her Majesty or the institution concerned shall use, in any oral or written pleadings in the proceedings, the official language chosen by the other parties unless it is established by Her Majesty or the institution that reasonable notice of the language chosen has not been given; and

(b) if the other parties fail to choose or agree on the official language to be used in those pleadings, Her Majesty or the institution concerned shall use such official language as is reasonable, having regard to the circumstances. While there does not appear to be judicial consideration on point, it is arguable that this provision applies to delegates of the Minister from IRCC and PSEP where they intervene in matters before the Board. Such proceedings are "before a federal court", which is defined in s. 3(2) of the Official Languages Act as "any court, tribunal or other body that carries out adjudicative functions and is established by or pursuant to an Act of Parliament." The Federal Court of Appeal concluded that the IRB meets this definition in Devinat v. Canada. Furthermore, the participation of the Minister's delegates in Board proceedings would appear to constitute a circumstance in which a "federal institution" has become party to proceedings. A "federal institution" is defined broadly in the Official Languages Act, it not only includes the Department of Citizenship and Immigration and the Department of Public Safety and Emergency Preparedness (based on the definitions of "federal institution" and "department" in s. 3 of the Act), but it also includes "any other body that is specified by an Act of Parliament to be an agent of Her Majesty in right of Canada or to be subject to the direction of the Governor in Council or a minister of the Crown", which would presumably include a Minister's delegate under the IRPA whose powers are derived from s. 6 of the Act which provides, inter alia, that "The Minister may designate any persons or class of persons as officers to carry out any purpose of any provision of this Act, and shall specify the powers and duties of the officers so designated".

Practice under the previous version of the RPD rules was that such documents did not need to be translated
Under the previous 2002 version of the rules, the wording of the predecessor rule to Rule 32(2) was interpreted as not requiring the Minister to provide translations of documents where the claimant subsequently switched the language of proceedings. For example, if the claimant elected to proceed in French and the Minister gave the claimant a document in French, and the claimant then subsequently decided that they instead preferred to proceed in English, the Minister was not obliged to provide a new translation of the document into English, but could instead rely on the previously disclosed document. The key question was whether the document was provided to the claimant in the language of proceedings at the time that it was sent.

This question was dealt with by the Federal Court in Blanco v. Canada, a case that concerned the previous version of the rules at the Immigration Division, which tracked the wording in the RPD Rule. In that case, the person concerned commenced his proceedings in English. The claimant then secured new, French-speaking, counsel. The Board then approved the claimant's application to change the language of the proceedings to French. At the same time, both the panel and the Minister refused to provide French translations of the documents that the Minister had previously sent to the applicant's former counsel in English. The claimant argued at the hearing that the panel could not legally enter into evidence documents that were in English and had not been translated into French prior to the hearing. The Federal Court rejected this argument on the basis that "It is clear that when the documents in question were provided by the respondents, the language of the proceedings was English, precluding the need for a French translation." This interpretation appears to turn on the then-extant Immigration Division rule which stipulated that "If the Minister provides a document that is not in the language of the proceedings, the Minister must provide a translation and a translator’s declaration. [emphasis added] " On the basis that the rule in question provided that the trigger for translation is the language of proceedings at the time that the document is provided, the court concluded that the documents could properly be entered as evidence in the hearing.

Changes to this provision in the 2012 RPD Rules now require that the document be in the language of proceedings at the time of its use
The Board's practice that was highlighted in the Blanco decision (above) was stridently criticized by members of the House of Commons Official Languages Committee. The Official Languages Commissioner subsequently requested that the Board make changes to the RPD Rules regarding the rules about the language of RPD proceedings. One of the goals for the new RPD Rules, as identified by the Board, was to "address [these] recommendations of the Office of the Commissioner of Official Languages (OCOL)". The wording of the new (and current) Rule 32(2) requires that "all documents used by the Minister in a proceeding must be in the language of the proceeding or be provided together with a translation in the language of the proceeding and a declaration signed by the translator [emphasis added] ". This is a departure from the previous wording of this Rule under the 2002 version of these rules, which read: "If the Minister provides a document that is not in the language of the proceedings, the Minister must provide a translation in that language and a translator’s declaration." The fact that the rule focuses on the use of the documents appears to indicate that under the new rules, the circumstances in Blanco v. Canada would not recur because the Minister would be obliged to provide translations of any documents that they had previously provided should they want to continue to rely on them.

RPD Rule 32(3) - Language of documents - Requirement for a translator's declaration
Translator’s declaration (3) A translator’s declaration must include translator’s name, the language and dialect, if any, translated and a statement that the translation is accurate.

What are the requirements for the translator's declaration for documents?
Translated document should meet the following requirements:


 * A copy of the original-language document should be provided in addition to the translation: Rules 32(1), 32(2), and 32(3), read conjointly, require that a copy of the original document in the original language be submitted as well as a translation of it.
 * The translator's declaration must meet each of the requirements enumerated in Rule 32(3): The translator's declaration should be in the following form: "A translator’s declaration must include the translator’s name, the language and dialect, if any, translated and a statement that the translation is accurate."
 * The translator's declaration should be signed: The instructions in the Basis of Claim form regarding document translation are that a claimant is to "Include certified translations in English or French for all documents in a language other than English or French." As explained on the Basis of Claim form, this requirement that the translations be "certified" will be met where any documents provided are accompanied by a translator's declaration that meets the requirements of Rule 32(3) ("A translator’s declaration must include translator’s name, the language and dialect, if any, translated and a statement that the translation is accurate") plus the statement is signed by the translator.
 * The translator should have some independence from the claimant: As a best practice, the translator is to have a certain degree of independence from the claimant.
 * Counsel on record for the case should not act as the translator: As a best practice, counsel themselves should not act as the translator because, should any issues arise as to the accuracy of the translation in question, then they could be called as a witness. While that can occur (e.g. cases in other legal contexts have held that "while it is highly undesirable for counsel to wear the cloak of both advocate and witness, the client has the right to have his counsel testify as a witness" ) it raises questions about potential conflicts of interest and logistical hurdles. However, as the court accepted in Grandmont v. Canada, a person working in-house at the law firm the claimant has selected may be considered acceptable to translate documents.
 * The claimant themselves, and close family members thereto, should not act as the translator: When interpreting its similar rule, the Immigration Appeal Division has rejected documents in on the basis of its concern that, inter alia, the documents were "not fully translated by an independent translator". The basis for this independence requirement in the rules appears to be somewhat scant, but arguably arises as a matter of the weight that the Board should attach to the evidence - particularly if any other credibility issues regarding the person doing the translating were to emerge at the hearing. This aspect of independence is also emphasized by public explanations of the refugee claim process, including Kinbrace Community Society's Refugee Hearing Preparation: A Guide for Refugee Claimants which notes that it is best that the translator not be a relative: "Certified translators are best, but not required. If you cannot pay for a professional translator, you can have someone else you trust (preferably not a relative) translate your documents for you."

Where the document does not contain a translator's declaration in the appropriate form, it should generally not be admitted
Where the requirement for a translator's declaration has not been complied with, the proper process is generally that the document should not be admitted. For example, the RAD has commented as follows:"Although there is an English translation of these documents, there is no [translator's declaration] attached to them, as is required.... The RAD, therefore, cannot ascertain that these documents have been properly translated from Chinese into English. The RAD therefore cannot accept these documents[.]"In the words of the Federal Court in Gorgulu v. Canada, "unless there is confirmation that the translation is accurate, the information in the English document is simply irrelevant because the necessary nexus to the original document is missing. ... Standing on their own, the English documents have no evidentiary value.  In the absence of an attestation from the translator that the documents in English are accurate translations of the original documents, there is no basis for the decision maker to consider the English documents.  They are simply irrelevant."

Parties sometimes attempt to adduce evidence that has been translated through automated systems such as Google Translate. It should generally not be admitted into evidence on the basis that no Rule 32(3) translator's declaration has been provided for such evidence. On the basis that "The Board cannot determine whether it is accurate", the Refugee Appeal Division has declined to admit such Google translations into evidence, including when provided by the Minister. The Refugee Protection Division specifically has issued a practice notice on this point entitled Refugee Protection Division Practice Notice: Compliance with Refugee Protection Division Rules which comments on Google translations as follows:"The RPD frequently receives documents that have not been translated, or have been translated but are not accompanied by a translator’s declaration. Sometimes these documents have been translated by a web-based tool, such as Google Translate. Such translations do not comply with RPD Rule 32, cause delays to the proceedings and may not be accepted by the presiding member."But see Gorgulu v. Canada, in which an applicant had submitted documents without a translator's declaration, and the court concluded that the decision maker was unreasonable in excluding the evidence without having first alerted the applicant to the missing certifications. In that case the court found that "a reasonable decision maker would conclude that the absence of a certification as to the accuracy of the translations was likely due to an oversight on the part of the translator and/or the lawyer who submitted the documents."

The translator need not supply an affidavit, be accredited, be fluent in both languages, or be completely independent
Provided that this is done, a translator's declaration need not comply with other requirements that are not found in the rules:


 * Statement from translator need not be an affidavit: For example, the translator's statement need not be in the form of an affidavit; the Immigration Appeal Division reached this conclusion when interpreting its similar rule: "The panel does not share the respondent’s concern with the Certificate of Translation that accompanied the disclosure. While not in the form of an affidavit, the Rule does not require one".
 * Translator need not be "accredited": There are many bodies that accredit translators and interpreters, from the Board itself to professional organizations like the Society of Translators and Interpreters of British Columbia. While using an accredited translator may be a good idea, it is not a requirement of the rules. The Immigration Appeal Division reached this conclusion when interpreting its similar rule: "The Minister’s counsel submitted that the translations ... do not constitute credible evidence because they were not done by accredited translators.... The panel is of the opinion that the documents submitted by the appellant showing the exchanges between the parties ... can be taken into account by the panel, even though they were not written by accredited translators".
 * The translator need not be fluent in both languages: The requirement in the rules is solely that the translator provide a "statement that the translation is accurate," nothing more. The University of Ottawa Refugee Assistance Project has a Hearing Preparation Kit which discusses the level of proficiency the translator must have in the languages in question. That kit includes sample translator's declarations, both where the translator is fully fluent in both languages, and one for where the translator is not. They indicate that an acceptable declaration to be used where the translator is not fully fluent in both languages is as follows: "I, ____(name_______, of the City of ____(location)_____, hereby certify that I have translated this Marriage Certificate from ____(original language)___ to English, and that I am partially competent to render such translation, being partially fluent in the ____(original language)___ and English languages. A fully competent translator was not available." That said, a party may use a non-fluent translator at their peril: the court notes that parties appearing before the RPD or the RAD are responsible for providing certified translations of their own documents that are in a language other than English or French and the Division need not be attuned to the possibility of there being a translation error in a document a party has submitted.
 * Translator need not be completely independent from the claimant: As discussed above, the translator is to have a certain degree of independence from the claimant, but the degree of independence required is not high. This aspect of independence is also emphasized by public explanations of the process, including Kinbrace Community Society's Refugee Hearing Preparation: A Guide for Refugee Claimants which notes that it is best that the translator not be a relative: "Certified translators are best, but not required. If you cannot pay for a professional translator, you can have someone else you trust (preferably not a relative) translate your documents for you. This person must sign a translator’s declaration." As the court accepted in Grandmont v. Canada, a person working in-house at the law firm the claimant has selected may be considered acceptable to perform this task.

RPD Rule 33 - Disclosure and use of documents by the Division
Disclosure and Use of Documents

Disclosure of documents by Division 33 (1) Subject to subrule (2), if the Division wants to use a document in a hearing, the Division must provide a copy of the document to each party.

Disclosure of country documentation by Division (2) The Division may disclose country documentation by providing to the parties a list of those documents or providing information as to where a list of those documents can be found on the Board’s website.

There is no time limit that applies to this rule, and new documents can be provided during a hearing
Rule 33(1) of the RPD Rules say that if the RPD “wants to use a document in a hearing, the Division must provide a copy of the document to each party.” The jurisprudence confirms that there are no time constraints on Rule 33(1), and that the RPD may disclose documents to a claimant at the hearing. Providing copies of documents during a break to counsel is not in and of itself procedurally unfair. But see: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing.

The Division has the power to provide post-hearing documents prior to rendering a decision
RPD Rule 33 concerns circumstances in which the Division provides a copy of a document that it wants to use in a hearing. What about where the Division wants to provide a document to parties following a hearing? The Division may do so and, while it must invite comment from the parties on any such post-hearing disclosure, it need not resume the hearing afterwards. The Division's power to provide such post-hearing documents was emphasized in the Board's public commentary on the previous version of the RPD Rules, which read "The Division may provide a document to the claimant (and to the Minister if the Minister has intervened) after a hearing if the Division considers its use would assist in ensuring a full and proper determination of a claim for refugee protection. The claimant will be given an opportunity to make submissions on that document." While that public commentary is no longer published by the IRB, the principle stands.

The RPD has an obligation to provide documents and information required by the Rules to the Minister upon request
Subsection 170(d) of the Act requires the Division to provide the Minister, on request, with the documents and information referred to in subsection 100(4) of the Act, which are the documents and information required by the rules of the Board:"100(4) A person who makes a claim for refugee protection inside Canada at a port of entry and whose claim is referred to the Refugee Protection Division must provide the Division, within the time limits provided for in the regulations, with the documents and information — including in respect of the basis for the claim — required by the rules of the Board, in accordance with those rules."

The panel should consider the most recent National Documentation Package
The Board Policy on National Documentation Packages in Refugee Determination Proceedings, which is dated June 2019, commits that "The RPD and RAD will consider the most recent NDP (s) in support of assessing forward-looking risk." A panel of the Board should comply with this policy. This has implications both for which NDPs should be disclosed on a file and for the currency of the NDPs which are disclosed:


 * Which NDPs are disclosed: A panel should ensure that it considers the relevant NDPs, both those that relate to countries of citizenship, as well as those that relate to countries of former habitual residence, where that concept applies. For example, in El Hraich v. Canada, the court commented that "There is no indication that the Panel considered the National Documentary Package on the UAE before it rendered the decision", noting that the court has found that where central elements of a claim, such as the right to return to a country of former habitual residence for a stateless person, are at issue, the RPD should examine and refer to the available country documentation. Furthermore, the panel may consider additional NDPs where relevant, such as those for a country that an appellant has transited through. See, relatedly: Canadian Refugee Procedure/RPD Rule 22 - Specialized Knowledge
 * Whether the NDPs disclosed are current: In Zhao v. Canada the court held that "as a matter of procedural fairness, the [Board] had a duty to disclose the most recent NDP and to give the Applicants an opportunity to respond and make submissions on this matter." Similarly, in Oymali v. Canada the court held that "the latest NDP should be considered in assessing risks".

The obligation to consider the latest NDP extends to matters where a new NDP is released while a claim is under reserve. However, there are some limits to this principle: See also: Canadian Refugee Procedure/RAD Rules Part 1 - Rules Applicable to Appeals Made by a Person Who Is the Subject of an Appeal.
 * It does not apply to documents other than those in an NDP: In Tambwe-Lubemba the court considered whether a panel of the Board must consider updated country documents received by the Board post-hearing that are not explicitly placed on the file. The applicants in that case submitted that the panel hearing their claim should have considered information received by the Refugee Division's document centre after the hearing, but before the decision had been rendered. What the Court held was that the panel was under no obligation to consider information that the members had not seen and that was not tendered by the claimants.
 * It does not apply where the new information would make no difference to the decision: The failure of the RAD to consider the most up-to-date NDP may constitute a reviewable error where the failure leads to the tribunal failing to consider and comment on evidence that contradicts its findings. In Worku v. Canada, the Federal Court held that the Board was not bound to consider the newest NDP information when there was no indication that the information was a significant departure from the information which was considered by the RPD. As such, the Board Policy on National Documentation Packages in Refugee Determination Proceedings is that "The RAD will disclose to the parties new NDP documents only when they wish to rely upon them". A panel will err if it does not consider an update to the NDP if the revision "could have affected the result". However, it is up to the applicant to establish that the new NDP contains information that is sufficiently different, new, and important.

The fact that the panel should consider the most recent National Documentation Package does not mean that a panel needs to scour through every document in it for any possible statement that could support or hinder the claimant; for a discussion of this, see Canadian Refugee Procedure/The Board's inquisitorial mandate.

Rule 33(2): The Division may disclose country documentation by providing information as to where a list of those documents can be found on the Board's website
RPD Rule 33(2) provides that "the Division may disclose country documentation by providing to the parties a list of those documents or providing information as to where a list of those documents can be found on the Board’s website." Certain documents are listed in the lists of documents on the Board website, but the documents themselves are only available via email, in particular samples of identity documents appended to Responses to Information Requests generated by the Board's research directorate. The court has held that the fact that such samples are not reproduced in the NDP published online on the IRB’s website does not breach procedural fairness. In Zerihaymanot v. Canada, the court noted that "this sample document was attached to a Response to Information Request in the NDP, with a note that to obtain a copy of the attachment, one must email a request. Rule 33(2) specifies that disclosure of country documentation may include being provided with the document by the Division or being informed where the information could be found." Further, in that case, during the RPD hearing, counsel was directed to the sample birth certificate and it was clear from counsel’s questions and submissions that counsel had the document. The court noted that there does not appear to be any requirement that the NDP be publicly posted on the internet, and that in the 1990s when this was not done, the Federal Court of Appeal had concluded that the fact that documents were available in IRB documentation centres was sufficient to be fair: Mancia v Canada.

RPD Rule 34 - Obligation, process, and timeline for a party to disclose documents they want to use in a hearing
Disclosure of documents by party 34 (1) If a party wants to use a document in a hearing, the party must provide a copy of the document to the other party, if any, and to the Division.

Proof that document was provided (2) The copy of the document provided to the Division must be accompanied by a written statement indicating how and when a copy of that document was provided to the other party, if any.

Time limit (3) Documents provided under this rule must be received by their recipients no later than (a) 10 days before the date fixed for the hearing; or (b) five days before the date fixed for the hearing if the document is provided to respond to another document provided by a party or the Division.

What documents does a party need to provide when?
Rule 34(1) concerns documents that a party "wants" to use in a hearing. The rule provides that such documents must be received by their recipients no later than 10 days before the date fixed for the hearing (except, per Rule 34(3)(b) where they are provided in response to documents provided by other party, in which case the deadline is five days prior to the hearing). This discretionary rule allows, but does not require, a claimant to submit documents. It can be contrasted with Rule 7(3) which obliges claimants to provide certain types of documents. Specifically, Rule 7(3) provides that a claimant "must" attach all "relevant documents in their possession" to their Basis of Claim form, including identity and travel documents (whether genuine or not). The only exception to this is for documents that were seized by an officer or provided to the Division by an officer. In short, the disclosure deadlines established by the RPD rules appear to be the following: As such, the rules appear to establish a regime in which a claimant is obliged to provide all relevant documents that are in their possession at the time that they provide their BOC form. For documents that come into a claimant's possession after that point, other than identity or travel documents, the claimant has discretion about whether or not to submit them and need only do so if they want to use them in the proceeding. A qualification to this principle is that:


 * claimants are obliged to submit identity and travel documents (whether genuine or not) that come into their possession at any point (Canadian Refugee Procedure/RPD Rules 3-13 - Information and Documents to be Provided);
 * while the Minister has no obligation to become a party to a proceeding (Canadian Refugee Procedure/RPD Rule 29 - Intervention by the Minister), once it does so and provides disclosure, its disclosure must be "complete" and cannot be selective. A failure to do so is a violation of natural justice. In the words of the Federal Court, "At a bare minimum, if the Minister chooses to disclose evidence, that disclosure must be complete." Where complete disclosure has not been provided by the Minister, procedural fairness may oblige the RPD to require the Minister to make inquiries of relevant Canadian law enforcement agencies to obtain documents, for example. In contrast, however, Ministerial disclosure does not need to be "complete" in proceedings before the Immigration Division. As general matter, the Stinchcombe principles [regarding providing disclosure in criminal cases] do not apply in the administrative context; that said, a heightened disclosure obligation akin to Stinchcombe may be afforded in the administrative context where the potential consequences of the tribunal’s decision are sufficiently serious. For example, a heightened disclosure obligation applies at the Immigration Division where an individual is detained: "The need for detainees to know the case against them creates a disclosure obligation. To be meaningful, the disclosure obligation cannot be limited to information on which the Minister intends to rely. All relevant information must be disclosed, including information that is only to the advantage of the detainee." Similarly, at the Immigration Division the CBSA may have an obligation to make reasonable inquiries of the RCMP to obtain all records, including exculpatory records, that may be relevant to an inadmissibility hearing, and to produce those records to the person subject to the proceedings. Furthermore, there is a distinction in law between first party and third party disclosure in administrative proceedings; separate principles apply to information held by a third party, for example where CBSA is involved in a case but the RCMP has also conducted an investigation. As pointed out by Justice Sebastien Grammond, full disclosure benefits the justice system as a whole because it facilitates the search for truth, allowing access to information and the testing of assertions.
 * claimants have an obligation to take reasonable steps to provide acceptable documents establishing their identity and other elements of the claim (Canadian Refugee Procedure/RPD Rules 3-13 - Information and Documents to be Provided); and
 * the Board can compel testimony and the production of evidence should it choose to do so (Canadian Refugee Procedure/RPD Rules 3-13 - Information and Documents to be Provided).

The above timelines for providing documents are reiterated in the Basis of Claim form that all claimants receive: "If you get more identity or travel documents that support your claim after you have provided your BOC Form, give two copies to the IRB without delay. If you get more documents, other than identity or travel documents, that support your claim after you have provided your BOC Form, give one copy to the IRB and a copy to the Minister, if the Minister is a party, at least 10 days before your hearing." The BOC Form also states on its cover page: "you are responsible for obtaining and providing to the IRB any documents that may support your claim."

The above documentary disclosure obligations specified in the Rules are also distinct from the separate matter of the Division's ability to draw an adverse inference as to credibility in circumstances in which documents are not provided. Even if it is not mandatory for the claimant to have submitted a particular document above as per the Rules, where a claimant does not do so, the Division may conclude that a claimant's failure to provide a document is indicative of a fear to provide the evidence to the Board, allowing the Board to draw an adverse inference about the credibility of the fact that the document would have otherwise served to establish or corroborate. Of course, this type of adverse inference may only be drawn where the claimant is given a reasonable opportunity to adduce the evidence once the Division identifies its concern, or where the evidence was otherwise mandatory for the claimant to produce, and furthermore the Federal Court has held that "a panel cannot draw a negative inference from the mere fact that a party failed to produce any extrinsic documents corroborating his or her allegations, except when the applicant’s credibility is at issue". See the discussion of Rule 11 for more detail: Canadian Refugee Procedure/RPD Rules 3-13 - Information and Documents to be Provided.

Rule 34(2): Proof that document was provided
Rule 34(2) provides that "the copy of the document provided to the Division must be accompanied by a written statement indicating how and when a copy of that document was provided to the other party, if any". When considering what such a statement will include, one can consider the cognate RAD rule: Proof document was provided 34 (1) Proof that a document was provided must be established by (a) an acknowledgment of receipt signed by the recipient or a statement of service, if the document was provided by hand; (b) a confirmation of receipt if the document was provided by registered mail, courier, fax or email or other electronic means; or (c) a statement of service if the document was provided by regular mail.

Statement of service (2) For the purpose of paragraph (1)(a) or (c), a statement of service consists of a written statement, signed by the person who provided the document, that includes the person’s name and a statement of how and when the document was provided.

Statement – unable to provide proof (3) If a party is unable to provide proof that a document was provided in a way required by paragraph (1)(a) to (c), the party must provide a written statement, signed by the party, that includes an explanation of why they are unable to provide proof. See: Canadian Refugee Procedure/RAD Rules Part 3 - Rules Applicable to All Appeals.

The Board must consider its discretion to provide relief where a claimant submits a document later than the time limit in Rule 34(3)
The time limit in Rule 34(3) for providing documents must be read in conjunction with section 170 of the IRPA, and specifically the following subsections of that provision: Subsections 170 (e), (g) and (h) of the IRPA however indicate that in any proceeding before the RPD it: (e) must give the person. . . a reasonable opportunity to present evidence. . .; (g) is not bound by any legal or technical rules of evidence; (h) may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances. In Trboljevac v. Canada, the court commented that "While the Panel Member was aware of the ten-day time period in Rule 34(3) for disclosing documents, the failure of the Member to acknowledge or apparently be aware of the IRPA provisions allowing them to nonetheless accept the documents had the effect of preventing the Applicant from substantiating his claim. ... the Panel Member should have addressed why they declined to exercise the discretion provided to them in section 170 of the IRPA. Failure to exercise that discretion was a breach of natural justice in this matter." The Board's discretion to admit late-filed documents is guided by Rule 36, below: Canadian Refugee Procedure/Documents.

Does the 10 day deadline for submitting documents reset when a hearing has multiple sittings?
A question can arise about the interpretation of the phrase "days before the date fixed for the hearing" in Rule 34. As per Rule 34(3), documents provided under this rule must be received by their recipients no later than 10 days before the date fixed for the hearing. If a resumption of a hearing is scheduled more than 10 days after the first sitting of the hearing, does this mean that any documents submitted 10 or more days prior to the next sitting are, in the words of RPD Rule 34(3), being submitted at least "10 days before the date fixed for the hearing"? To the mind of this author, this question has not been definitively resolved in the published jurisprudence. This this is likely because panels are permissive about accepting documents submitted prior to a resumption given their obligation to give any person before them a reasonable opportunity to present evidence (s. 170(e) of the Act).

RPD Rule 35 - Documents relevant and not duplicate
Documents relevant and not duplicate

35 Each document provided by a party for use at a proceeding must (a) be relevant to the particular proceeding; and (b) not duplicate other documents provided by a party or by the Division.

The use of the National Documentation Package does not preclude the disclosure of additional Country of origin information
The Board Policy on National Documentation Packages in Refugee Determination Proceedings states that:"Relevant NDP (s) are disclosed to the parties in every refugee claim before the  RPD as the standard source of COI evidence in refugee determination. As per RPD Rule 33(2), the RPD provides the parties with information as to where the NDP can be found on the Board's website, and it is the parties' responsibility to check the    IRB website for the newest version of the relevant NDP (s) prior to their hearing. ... The use of NDPs does not preclude the disclosure of additional COI not contained in an NDP by the Division or a party to a proceeding. Such information must be disclosed on a case-by-case basis, subject to the legal and procedural requirements of each Division."

Practice notice on voluminous country conditions evidence
The Board’s Notice to parties and counsel appearing before the Refugee Protection Division – voluminous country conditions evidence specifies procedures regarding voluminous disclosure of country conditions evidence filed at the Refugee Protection Division. As per the practice notice, parties must make a formal application to submit country conditions evidence that exceeds 100 pages per country of reference. Disclosure of country conditions evidence over the specified page limit must be accompanied by an application made in accordance with RPD Rule 50. That said, during the Covid-19 pandemic, this practice notice has been suspended, so it is no longer in effect.

How does one know whether documents are country conditions evidence or not?
As the practice notice states, evidence presented before the RPD generally falls into two broad categories: documents personal to the parties (e.g. identity documents, police reports, etc.) and evidence regarding country conditions (e.g. human rights reports, research on the situation in the country, etc.). This Practice Notice applies only to country conditions evidence. Documents which speak to the claimant's personal risk and are specific to their claim, for example those that are by or about the claimant themselves, will be considered personal. In contrast, country conditions documents are evidence relating to human rights conditions in a claimant's country. The question in each case is whether the primary purpose of a particular document is to substantiate the claimant's personal profile or to speak to human rights or other facts and conditions regarding a claimant's country. The guidebook Refugee Hearing Preparation: A Guide for Refugee Claimants from refugeeclaim.ca provides examples of each type of document. With regards to personal documents, they list:
 * Are there photographs, letters, videos, emails, or other documents that show the problems you had? Get them!
 * Did you go to the police or another government agency for help? Get a copy of the police report or other proof of your visit.
 * Did you get medical help? Get your hospital or doctor’s records.
 * Are there news articles about people who are connected to your case? Get them!
 * Are there people who witnessed what happened to you? Ask them to write what happened and send it to you. If possible, ask this person to swear (declare) their statement is true in front of a lawyer or notary.
 * Are there people who have experienced problems that are similar to yours? Ask them to describe their experiences in writing. If possible, ask this person to swear their statement is true in front of a lawyer or notary.
 * Is your claim based on your religious identity or membership in a political party or other group? Get documents that show your membership.
 * Has your mental health suffered because of what happened to you? Get a report from a doctor or psychologist in Canada which documents your health problems.
 * You will also need identity documents to prove your citizenship.

With regards to country conditions documents, they list: Similarly, documents about an organization that the claimant may have been involved with (even in Canada) will fit into this category of evidence that relates to human rights conditions in a claimant's country, so long as they do not mention the claimant by name or otherwise depict or refer to the claimant. Thus, for example, where the Minister seeks to intervene to argue that a claimant is excluded pursuant to Article 1F(a) of the Convention, if the Minister wishes to provide more than 100 pages to demonstrate that an organization in question committed crimes during a specific historical period, pursuant to this practice notice, they must bring an application for permission to file voluminous disclosure. Additional discussion of the difference between these two types of documents is found in the IRB Instructions for Gathering and Disclosing Information for Refugee Protection Division Proceedings which distinguishes between country-of-origin research—which is generally-available information and does not include “information gathered by the IRB that is specific to a particular claimant”—and claimant-specific research. Furthermore, the Board Policy on National Documentation Packages in Refugee Determination Proceedings provides the  following definition of Country of origin information (COI): "Information about the situation in a country that is relevant to the refugee determination process and obtained from publicly available sources that are viewed as, whenever possible, reliable and objective."
 * This type of evidence includes reports from well-respected sources that document human rights abuses, political events, and other news that relate to your claim.
 * Recent reports from human rights organizations (e.g. Amnesty International, Human Rights Watch), United Nations reports, U.S. State Department Country Reports, news articles, or videos showing human rights abuses in your country.
 * Articles and reports from newspapers and human rights organizations in your country.

What is the Board's jurisdiction to limit voluminous country conditions disclosure?
As is clear from Rule 35, the only conditions imposed by the Rules on which documents may be admitted are that they must be relevant to the proceeding and not duplicate any other documents provided by the claimant or the Division. The RPD Rules themselves contain no restriction on the volume of documents that may be disclosed, and they make no distinctions between different types of documents. The authority cited in the practice notice is that the Chairperson of the IRB has the authority to take any action that may be necessary to ensure that members of the Board are able to carry out their duties efficiently and without undue delay as per paragraph 159(1)(g) of the Act. In addition, Rule 69 of the RPD Rules specifies that in the absence of a provision in the Rules dealing with a matter raised during the proceedings, the Division may do whatever is necessary to deal with the matter.

The sufficiency of this legislative provision and Rule as authority for what appears to be an amendment to the Rules via practice notice (that was not authorized by the Governor in Council, as required), does not appear to have received judicial consideration. See Canadian Refugee Procedure/About for details about how the RPD rules were authorized by the Governor General in Council. However, the Federal Court of Appeal’s reasoning in Thamotharem v. Canada would appear to provide some support for the Board’s action. As the IRB Policy on the Use of Chairperson's Guidelines and Jurisprudential Guides notes, "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." For further discussion thereon, see: Canadian Refugee Procedure/159 - Duties of Chairperson.

The Board has jurisdiction to refuse to admit documents for reasons that are broader than the Rule 35 criteria
Rule 35 provides two criteria for all documents provided by a party for use at a proceeding: they must be relevant and not duplicative. Does the fact that the Rules only enumerate these two criteria here mean that, by implication, the Board may not refuse to admit documents for other reasons beyond those enumerated in Rule 35? No. The Board retains a broader discretion to control its process, including the documents that it admits in its proceedings. There are numerous examples of this, including:


 * Excluding evidence where doing so is required by the Constitution: For example, the Division has the power to exclude evidence pursuant to s. 24(2) of the Charter where the evidence was collected in violation of Charter rights, an issue which usually arises regarding port of entry interview notes in situation where the right to counsel was violated; see, as an example, Huang v. Canada.
 * Excluding evidence where doing so is required by law: The Board states in its Legal Services paper on Weighing Evidence that "in some cases it is not appropriate to admit evidence and give it little or no weight, instead the panel should refuse to admit the evidence at all. This may arise, for example, where the evidence is ... protected by privilege or statutory protection of its confidentiality". This would apply, for example, where the use of the evidence is prohibited by the Privacy Act. The Board frequently considers this issue when determining whether to admit decisions from other panels into evidence where they are provided by the parties: Canadian Refugee Procedure/166 - Proceedings must be held in the absence of the public.
 * Excluding evidence as a discretionary decision made by the tribunal: The Board states in its Legal Services paper on Weighing Evidence that "in some cases it is not appropriate to admit evidence and give it little or no weight, instead the panel should refuse to admit the evidence at all. This may arise, for example, where the evidence is not relevant to the issues in the case; or where the prejudicial effect of the evidence outweighs its probative value; ... or where the evidence is unduly repetitive."

RPD Rule 36 - Use of undisclosed documents
Use of undisclosed documents 36 A party who does not provide a document in accordance with rule 34 must not use the document at the hearing unless allowed to do so by the Division. In deciding whether to allow its use, the Division must consider any relevant factors, including (a) the document’s relevance and probative value; (b) any new evidence the document brings to the hearing; and (c) whether the party, with reasonable effort, could have provided the document as required by rule 34.

The Board must weigh the relevant factors
The court has provided guidance on how the RPD should approach the task of weighing the factors listed in Rule 36, noting that considering such factors does not mean merely listing them, but involves actively weighing them to determine whether the documents in question should be admitted. Prior to the Covid-19 pandemic, the RPD had a practice notice in effect entitled Notice to parties and counsel appearing before the Refugee Protection Division – late disclosure. Nothing in this practice notice relieved the Board of the obligation to exercise its discretion under Rule 36:"Rule 36 of the RPD Rules clearly gives the RPD discretion to accept an undisclosed document at the hearing. This discretion exists even if a party’s request does not comply with the Notice to parties and counsel appearing before the Refugee Protection Division - late disclosure published by the Immigration and Refugee Board of Canada, although this defect may be a relevant factor in determining the request. When a refugee protection claimant asks the RPD to exercise this discretion, the principles of procedural fairness require that he or she be given the opportunity to make submissions on the matter. The RPD did not give Ms. Alvarez Rivera such an opportunity, which constitutes a breach of procedural fairness."Furthermore, the list of relevant factors under Rule 36 requires that all of the factors should be considered, not just some of them.

Past consideration of the Rule 36 factors
Past decisions of the Board have considered the above factors thusly:


 * (a) the document’s relevance and probative value
 * Is the source of the document reliable? For country conditions evidence, probative value can be assessed in part by considering the source of the document. For example, in Hasan v. Canada the Board refused to admit a series of documents concerning country conditions relevant to the claim: "Within the Disclosure Package are a number of reports from various organizations attesting to the ill-treatment of Palestinian males, the severe measures taken against Palestinians, and the unlawful killings and other abuses directed against Palestinians by Israeli forces." The court held that it could be considered that "These reports come from such traditionally accepted (for purposes of evidence) sources as Amnesty International. In addition, several reports emanated from Israeli sources such as the Israeli Information Centre for Human Rights in the Occupied Territories."
 * How central are these documents to the core elements of the claim? The RAD has held that, as part of this probative value assessment, there should be an analysis as to the centrality of the documents to the core elements of the claim.
 * What is the probative value of the documents? In Mohammed v. Canada, the Federal Court upheld a Board decision in which the RPD refused to admit affidavits submitted post-hearing as "the affidavits were of...very weak probative value given the sparse details they contained of the alleged persecution, the contradictions in them, and the absence of identity documents of the affiants."
 * (b) any new evidence the document brings to the proceedings
 * For example, in Mohammed v. Canada, the Federal Court upheld a Board decision in which the RPD refused to admit affidavits submitted post-hearing on the basis that the affidavits "disclosed no new evidence not previously covered in Mr. Mohammed’s basis of claim [BOC] or testimony, and did not address [the affaints'] alleged efforts to locate other evidence."
 * (c) whether the party, with reasonable effort, could have provided the document as required by rule 34
 * Is the claimant educated? In Mercado v. Canada the court affirmed that it is proper to consider a claimant's level of education when making this decision, stating with approval that "The panel clearly took into consideration the fact that the applicant was educated."
 * Has the claimant been self-represented? The Board's Chairperson Guidelines 7 provide that "Generally speaking, the RPD will make allowances for self-represented claimants who are unfamiliar with the RPD's processes and rules." That said, it may be considered that the Claimant's Kit that all claimants receive, and the instructions on the BOC form, emphasize the document disclosure deadlines (see Canadian Refugee Procedure/RPD Rules 31-43 - Documents).
 * Is the party's counsel experienced? In Mercado v. Canada the court affirmed that it is proper to consider the fact that a claimant was represented by experienced counsel when making this decision. The court stated: "Contrary to the applicant’s argument, the RPD did not impose a heavier burden on him simply because he was represented by this counsel. That was simply a part of the facts relevant to assessing the reasonable efforts that could objectively be expected on the part of a person in the applicant’s position." But see: "Counsel should be presumed to have acted competently" at Canadian Refugee Procedure/Principles for the interpretation of refugee procedure.
 * How much time has the party had to try to obtain the document? In Mercado v. Canada the court affirmed that it is proper to consider how much time a claimant has had to access the document in question, writing "the RPD also considered that the applicant had more than two years to obtain this documentation and that it should have been easy to access".
 * Were the documents available to the party earlier? Lorne Waldman writes in his text that a panel of the Board should consider the explanation provided for the late disclosure: "If the documents were available and could have been disclosed earlier than this will weigh against acceptance of the documents." For example, in Mercado v. Canada the court commented with approval that the RPD "considered that the applicant had more than two years to obtain this documentation and that it should have been easy to access because the principal applicant seemed to indicate that the tax return was in his father’s possession in Venezuela."
 * Was a party's ability to produce this document affected by the Covid-19 pandemic? The RPD should consider the principle set out in the Refugee Protection Division: Practice Notice on the resumption of in-person hearings that it will apply the rules flexibly in light of Covid-19. The following is an example of how this factor was considered in one decision: the RPD considered the circumstances of the COVID-19 pandemic, but noted that (a) Mr. Mohammed had been in Canada for almost two years prior to the pandemic; (b) state and central government offices in Telangana were functioning at full strength as of May 11, 2021, and that all COVID restrictions had been lifted on June 19, 2021. Finally, from a broader policy perspective, the RPD noted that while the RPD Rules contemplated a flexible, accessible, and adaptive tribunal process, the timely disclosure of documents in accordance with the Rules promoted efficiency and access to justice. Since the factors weighed against admission of the evidence, the RPD declined to admit the affidavits.

Furthermore, the Board is to consider any other relevant factors, which have included:


 * When were the documents actually disclosed? As stated in the Board's public commentary on the previous version of these rules under the heading Other factors the Division may consider where disclosure is late, "The Division may also consider other relevant factors such as ... when the documents were actually disclosed. Thus the parties should make every effort to disclose their documents as soon as possible." For example, in one decision on this matter RAD Member Angus Grant noted that it was relevant that the documents had been submitted "a full five days prior to the hearing".
 * Was the Board aware at an earlier date that a mistake was made in providing the document, and what actions did the Board take? The Federal Court noted in Balasundaram v. Canada that "Reasonableness underlying fairness is also based on expectations. Norms of conduct develop and persons come to rely upon them. One of those norms that normally applies is that obvious slips and omissions will not be automatically fatal and may be corrected. For example, the failure to include an attachment to an email raises the expectation that the addressee will advise the sender of his or her error."
 * Will admitting the documents result in delay to the proceedings? Lorne Waldman writes in his text that a panel properly considers "whether or not the admission of the late disclosure will result in a lengthy delay in the proceedings." Where it would, this would point against admission of the late document. Where it would not, this would support admitting the document.
 * Would admitting the evidence cause prejudice to the other party in the proceedings? The court considered this factor in Hasan v. Canada when it concluded that the Board was wrong to refuse late evidence in a case where the Minister was not participating. Lorne Waldman writes in his text that "In light of the wording of these Rules and given the importance of the procedure to the individual involved, it is certainly arguable that relevant documents should be excluded only if their admission would be highly prejudicial to one of the parties and if this prejudice could not be rectified by a short adjournment."
 * Are there any relevant personal circumstances of the claimant? As stated in the Board's public commentary on the previous version of these rules under the heading Other factors the Division may consider where disclosure is late, "The Division may also consider other relevant factors such as the personal circumstances of the claimant". For example, one may consider the statement in the Board's SOGIE guidelines that "A reasonable delay may also arise out of an individual's reluctance to reveal their SOGIE to a spouse or other family member, or in their realizing or accepting their SOGIE ."

Rule concerns use of undisclosed documents at a hearing, as opposed to other types of proceedings
Rule 36 provides that a party who does not provide a document in accordance with Rule 34 (which specifies the process and timeline for disclosure of documents by a party) must not use the document at the hearing unless allowed to do so by the Division as per the process specified above. In interpreting this rule, the definitions section in Rule 1 provides a definition of a "proceeding" which is apposite. It defines a proceeding as including "a conference, an application or a hearing". As such, the fact that such documents cannot be used at a "hearing" appears to imply that they may be used in other types of proceedings, subject to other relevant rules. One such rule is Rule 43 concerning additional documents provided after a hearing. If the hearing has occurred, then any documents provided afterwards must meet the requirements of that rule. The fact that this rule does not limit a party's ability to use documents in, say, a pre-hearing application or conference stems from the wording of Rule 34, which establishes the deadline for providing such documents as being "10 days before the date fixed for the hearing". Instead, if a late-filed document being relied upon in a pre-hearing conference or application were to cause prejudice to another party, then general principles of procedural fairness would guide the Board's actions.

The Division may impose conditions on the use of late documents
As stated in the Board's public commentary on the previous version of these rules, "Where the Division allows the use of a document provided outside the time limit in the rules, it may impose conditions on its use that it considers appropriate. For example, the Division may decide that only certain relevant portions of a long document will be referred to."

If the panel admits late documents pursuant to Rule 36, it should not then assign those documents low weight for the sole reason that they are late
In Pineda v. Canada, the Division had accepted documents that were submitted late. However, in its reasons, the tribunal concluded that it would afford the documents little weight because of the late disclosure. The court concluded that this was in error: "having exercised its discretion to allow the filing of this evidence pursuant to Rule 30 outside of the delay provided for in Rule 29, it appears somewhat counterintuitive considering the criteria to be used in the exercise of such discretion to then assign very little weight to this evidence on the basis that it was filed late and without considering the explanation provided by the applicant as to why it was so."

The Rule 36 factors need not be considered where a document is otherwise inadmissible, for example where it has not been translated
The requirement that the tribunal consider whether to accept a late document does not apply where the issue is not the lateness of the document but rather the lack of a proper translation. In Soares v. Canada the court held that this rule need not be considered in a case where the issue is not that a document had been disclosed late, but rather that it has been disclosed without translation. In short, the fact that a party is attempting to provide untranslated analysis late does not change the fact that both this rule and Rule 32 properly apply in such circumstances: Canadian Refugee Procedure/RPD Rules 31-43 - Documents.

RPD Rule 37 - Rules 38-41 apply to any document
Providing a Document

General provision 37 Rules 38 to 41 apply to any document, including a notice or request in writing.

RPD Rule 38 - How to provide documents to the Division, the Minister, and any other person
Providing documents to Division 38 (1) A document to be provided to the Division must be provided to the registry office specified by the Division.

Providing documents to Minister (2) A document to be provided to the Minister must be provided to the Minister’s counsel.

Providing documents to person other than Minister (3) A document to be provided to a person other than the Minister must be provided to the person’s counsel if the person has counsel of record. If the person does not have counsel of record, the document must be provided to the person.

RPD Rule 39 - Ways that a document may be provided
How to provide document 39 Unless these Rules provide otherwise, a document may be provided in any of the following ways: (a) by hand; (b) by regular mail or registered mail; (c) by courier; (d) by fax if the recipient has a fax number and the document is no more than 20 pages long, unless the recipient consents to receiving more than 20 pages; and (e) by email or other electronic means if the Division allows.

This limit has been increased to 50 pages by practice notice
As per the Practice Notice on the resumption of in-person hearings from the RPD dated June 24, 2020, the 20 page limit for faxes has been increased to 50 pages.

Unless consent to receive more than 20 pages by fax is received prior to sending the document, the document will not be considered to have been received
As stated in the Board's public commentary on the previous version of these rules, "The maximum number of pages that may be faxed to the Division or to another party is 20 pages, including a cover sheet. The recipient's consent must be obtained before faxing a document or package of documents longer than 20 pages; otherwise, the documents will not be considered to have been received." This statement would apply, mutatis mutandis, to the new limit of 50 pages.

RPD Rule 40 - Application if unable to provide document
Application if unable to provide document 40 (1) If a party is unable to provide a document in a way required by rule 39, the party may make an application to the Division to be allowed to provide the document in another way or to be excused from providing the document.

Form of application (2) The application must be made in accordance with rule 50.

Allowing application (3) The Division must not allow the application unless the party has made reasonable efforts to provide the document to the person to whom the document must be provided.

Rule 40(3): The party must have made reasonable efforts to provide the document to the person to whom the document must be provided
This is an issue that arises with applications to vacate and cease refugee protection where the protected person cannot be located: Canadian Refugee Procedure/RPD Rule 64 - Applications to Vacate or to Cease Refugee Protection. Such applications may proceed in the absence of the person concerned unless doing so would amount to a breach of the tribunal's duty of fairness. The Division must not allow an application to proceed without having provided notice to the person concerned unless the Minister can show, to the Division's satisfaction, that reasonable efforts have been made to provide the document as required, as stated in Rule 40(3). In determining applications under rule 40, the RPD has considered such factors as:


 * the Minister’s efforts to search internet databases,
 * the Minister's searches in the Canadian Police Information Centre database,
 * the Minister's personal attendance at the last known address,
 * the Minister's attempts to reach the protected person at the last known telephone number, and
 * the relative quality of the Minister’s evidence on the merits of the application to cease.

RPD Rule 41 - When documents are considered received
When document received by Division 41 (1) A document provided to the Division is considered to be received by the Division on the day on which the document is date-stamped by the Division.

When document received by recipient other than Division (2) A document provided by regular mail other than to the Division is considered to be received seven days after the day on which it was mailed. If the seventh day is not a working day, the document is considered to be received on the next working day.

Extension of time limit — next working day (3) When the time limit for providing a document ends on a day that is not a working day, the time limit is extended to the next working day.

The fact that a document is "considered to be received" on a particular day creates a rebuttable presumption of fact
Rule 41(2) states that "a document provided by regular mail...is considered to be received seven days after the day on which it was mailed." The fact that a document is "considered to be received" on that date means that it can be presumed, in the absence of evidence to the contrary, that the document was received on the date in question. However, this is a rebuttable presumption of fact. Where, for example, the mail is returned as undeliverable, the presumption would not hold. Similarly, if information came to the attention of the sender that the document in question in reality was received on a later day, for example because the recipient was outside of the country for an extended period, then it would not be proper to simply "consider" the document as having been received after the seven-day period. This interpretation is supported by the Board's public commentary on the previous version of the rules which held that the fact that a document is "considered to be received" in this way "does not relieve a party of ensuring that [it was actually received]": "If a document is sent by regular mail, [this subsection] of the Rules states that the document is considered to be received seven days after the day it was mailed. If the seventh day is not a working day, the document is considered received on the next working day. However, mailing the document does not relieve a party of ensuring that the Division actually receives the document within the specified time limit." Similarly, while it will be presumed that a notice of hearing mailed to a claimant (or their counsel) provides adequate notice of a hearing, where the evidence establishes that the notice was not in fact received, then any abandonment determination could be set aside, subject to a broader examination of the principles relevant to abandonment proceedings including whether the claimant was diligent in keeping the Board up-to-date with their contact information. In Waldman's words, "in a specific case it may be possible to overcome the deeming provision if the claimant can show that in fact the [document] was not received within the stipulated seven day period. However, there will be an onus on the claimant to establish through cogent evidence that that was the case." Ghaloghlyan v. Canada provides guidance on what it takes to prove that a document was sent: 9. Thus, the question becomes: what does it take to prove on a balance of probabilities that a document was sent? In my opinion, to find that a document was “correctly sent”, as that term is used in Kaur, it must have been sent to the address supplied by an applicant by a means capable of verifying that the document actually went on its way to the applicant.

10. For example, with respect to documents, proving that a letter went on its way is verified by sending it by registered mail and producing documentation that this was the manner of sending, or by producing an affidavit from the person who actually posted the letter. Proving that a fax went on its way is verified by producing a fax log of sent messages confirming the sending. Proving that an email went on its way is verified by producing a printout of the sender’s e-mail sent box showing the message concerned was addressed to the e-mail address supplied for sending, and as no indication of non-delivery, the e-mail did not “bounce back”. Other evidence that a document went on its way might suffice; the determination in each case depends on the evidence advanced. One way that this is commonly done on files is through the generation of what is titled a “Statement that a Document was Provided”, which contains an express statement that a was served on a particular date and which a Registry Officer signs at the bottom of the form. Upon proof on a balance of probabilities that a document was sent to an applicant, a rebuttable presumption arises that the applicant received it, and the applicant’s statement that it was not received, on its own, does not rebut the presumption.

Documents sent to another Division of the Board will not automatically be placed on the RPD file
Persons with matters before the RPD may also have matters before another Division of the Board, including the Immigration Division, or the Refugee Appeal Division (as when a matter is appealed and then remitted for reconsideration by the RAD). Documents submitted to those other Divisions will not automatically be placed on the record at the RPD and it is generally up to a party to submit such documents to the RPD if they want the RPD to consider them.

RPD Rule 42 - Original documents
Original Documents

Original documents 42 (1) A party who has provided a copy of a document to the Division must provide the original document to the Division (a) without delay, on the written request of the Division; or (b) if the Division does not make a request, no later than at the beginning of the proceeding at which the document will be used.

Documents referred to in paragraph 3(5)(e) or (g) (2) On the written request of the Division, the Minister must without delay provide to the Division the original of any document referred to in paragraph 3(5)(e) or (g) that is in the possession of an officer.

One of the purposes of original documents being made available to the Division is to allow for the verification of those original documents
Rule 42 provides that a party who has provided a copy of a document to the Division must also provide the original document to the Division. One of the purposes of this relates to the integrity of the process and the ability of the Division to assess the authenticity of the original document. For example, the Instructions for Gathering and Disclosing Information for Refugee Protection Division Proceedings state that where, after consulting with the responsible member manager, the assigned member forms the opinion that forensic verification is necessary, they may direct the RPD adjudicative support team to send the document to the RCMP Forensic Laboratory Services for verification. The average turn around time for forensic examination is 120 days. Hence, the assigned member must consider whether forensic verification will unreasonably delay the proceedings beyond the parameters set by legislation.

The Board has suspended the application of Rule 42(1)(b) during the Covid-19 pandemic
In its Practice Notice on the resumption of in-person hearings, which applies during the Covid-19 period, the Board has states that "until further notice, the RPD waives the requirement in RPD Rule 42(1)(b) to provide the original documents at the beginning of the hearing, unless directed in advance by the presiding member." This practice notice states that "original documents must still be retained and provided to the Division upon request."

RPD Rule 43 - Additional documents provided as evidence after a hearing
Additional Documents

Documents after hearing 43 (1) A party who wants to provide a document as evidence after a hearing but before a decision takes effect must make an application to the Division.

Application (2) The party must attach a copy of the document to the application that must be made in accordance with rule 50, but the party is not required to give evidence in an affidavit or statutory declaration.

Factors (3) In deciding the application, the Division must consider any relevant factors, including (a) the document’s relevance and probative value; (b) any new evidence the document brings to the proceedings; and (c) whether the party, with reasonable effort, could have provided the document as required by rule 34.

History
The present RPD Rule 43 is similar, but not identical, to the previous Rule 37 in the older, 2002, version of the rules: Additional documents after the hearing has ended 37. (1) A party who wants to provide a document as evidence after a hearing must make an application to the Division.

Written application (2) The party must attach a copy of the document to the application. The application must be made under rule 44, but the party is not required to give evidence in an affidavit or statutory declaration.

Factors (3) In deciding the application, the Division must consider any relevant factors, including: (a) the document’s relevance and probative value; (b) any new evidence it brings to the proceedings; and (c) whether the party, with reasonable effort, could have provided the document as required by rule 29.

Rule 43 applies to evidence, not submissions, caselaw, or other tribunal decisions
Rule 43 does not apply to submissions made after a hearing. This is because, as stated in Yared Belay v. Canada, this rule sets out a procedure for filing evidence after a hearing, not submissions. Furthermore, a party cannot make an application to submit another decision of the Refugee Protection Division, or indeed some other tribunal, or a piece of caselaw pursuant to this rule. As the court commented in Petrovic v. Canada:"I do not find that a copy of a tribunal decision constitutes “evidence” under subsection 43(1) of the Rules for the following reasons. First, the RPD is not required to analyze each piece of case law, as it would material evidence. Second, with the presentation of new evidence, the opposing party is generally given the opportunity to make submissions on the admissibility of said evidence, including cross‑examination. It is difficult to imagine how anyone could oppose the admissibility of a piece of case law (decision). Lastly, if Parliament wanted previous RPD decisions to constitute evidence under section 43 of the Rules, I believe it would have explicitly indicated so."The relevant rule for extending the time to supply non-evidentiary documents is Rule 70 (Canadian Refugee Procedure/RPD Rules 69-71 - General Provisions). All of this said, the court has held that in some situations where the RPD accepts post-hearing submissions, it may be unreasonable not to accept the evidence on which those submissions were based.

The Division has no substantive duty to accept post-hearing evidence or submissions, but it must consider the newly submitted evidence expressly
As held in Aguilera v Canada, the Board "has no duty to accept post-hearing evidence or to allow submissions thereon". It does, however, have a duty to "acknowledge the post-hearing evidence submitted by the Applicants and to explain why it should or should not be considered". In short, "the Board ha[s] a duty to consider the newly submitted evidence expressly". This duty extends until such time as the decision is rendered. Where a panel fails to acknowledge and review a claimant's post-hearing evidentiary submissions, it will have violated the principles of natural justice and procedural fairness in the adjudication of the claim. However, this obligation does not entitle a claimant to any particular result other than a fair process in which the relevant rules, such as Rule 43, are considered and the evidence is then either accepted or rejected.

This obligation to consider newly submitted evidence expressly applies even where the Rule 43 application may be scant, or missing details. For example, in Cox v. Canada, the court considered a situation in which the Minister argued that: "the Board had no duty to consider expressly the application to admit the evidence in its reasons because the application did not comply with all of the requirements of Rule 37. Particularly, the Respondent underlines the want of explanation in the application as to why the evidence could not have been submitted in time for the hearing."The court dismissed this argument, concluding that the Board had a duty to consider the newly submitted evidence expressly notwithstanding the lack of such submissions on one of the factors enumerated in the relevant rule. See also the following commentary: Canadian Refugee Procedure/RPD Rules 31-43 - Documents.

New evidence submitted post-hearing should be assessed pursuant to Rule 43 even where the party does not explicitly refer to the rule
In Shuaib, the Court addressed the issue of whether the RPD could reject post-hearing documents on the basis that no formal application for their admission was made in accordance with Rule 43. The Court found that providing the documents, accompanied by an explanation as to why they should be considered, met the requirements of the Rules. The Court determined that the RPD made a reviewable error in ignoring the post-hearing evidence. Similarly, the RAD has held that the RPD erred in not considering documents where it was "implicit in the correspondence to the RPD that an application was being made to have further evidence considered post-hearing." Member M. Pettinella of the RAD commented on this obligation as follows in one case: "The RAD notes that the Minister’s correspondence was received by the Board after the Appellant’s hearing and before a decision was rendered by the RPD. It is implicit in the Minister’s correspondence to the RPD that an application was being made to have further evidence considered post-hearing. The RPD erred when it failed to consider the Minister’s correspondence as an application. The RPD had an obligation to consider the Minister’s application and determine if the evidence was admissible within its rules. RPD rule 43(3) indicates that the RPD must consider any relevant factors, including, the document’s relevance and probative value; any new evidence the document brings to the proceedings; and whether the party, with reasonable effort, could have provided the document as required by rule [43]."

The Board must consider each of the Rule 43(3) factors
Pursuant to Rule 43(3), in deciding this type of application, the Division must consider any relevant factors, including:


 * (a) the document’s relevance and probative value
 * (b) any new evidence the document brings to the proceedings
 * (c) whether the party, with reasonable effort, could have provided the document as required by rule 34

As such, the Board is required to consider the relevance, probative value, newness of the documents, as well as whether the party, with reasonable effort, could have provided the document on time, i.e. factors that are the same as those enumerated in Rules 36(a), (b), and (c). The text Refugee Law states that "the criteria for the receipt of post-hearing evidence are similar to the long-established grounds at common law by which an individual may tender new evidence on appeal." The court has held that "While the list of factors to be considered in [Rule 36] is not exhaustive, the use of the word “including” rather than the words “such as” before the list of factors indicates the intent that each of the factors included in the sub-rule be considered. A failure to do so gives rise to a breach of procedural fairness." As such, in a case where the Board's decision weighed only one factor, the court concluded that it had erred.

Rule 43(3) factors are not exhaustive, and as such, the Board may consider additional factors
The fact that, per Rule 43(3), the Division should consider "any relevant factors" means that it is not limited to the factors above, which are enumerated in the rule, and may consider other factors. In the words of Mr. Justice Near, "the list of factors to be considered in Rule 37(3) is not exhaustive" and the same principle would apply here.

The consideration of the Rule 43(3) factors in past decisions
See the discussion of the identical factors in the commentary for Rule 36 above (Canadian Refugee Procedure/RPD Rules 31-43 - Documents). Additional factors particular to post-hearing documents that have been considered have included:


 * Whether a claimant made an earlier application to provide post-hearing documents that did not include this type of document: Where a panel has provided a claimant with leave to submit some specified type of document post-hearing, the claimant should not expect that another, unrelated, type of document will be allowed absent an application on point. In Farkas v. Canada, the court noted that "the post-hearing documents actually submitted do not fit within the type for which the RPD had given leave to file, that is to say 'corroborative police and/or medical documents'. As the post-hearing evidence did not fall within the scope of the RPD’s grant of permission, the RPD would have been justified rejecting it."
 * Whether the document exists at the time of the application: At times, parties will apply for a proceeding to be held in abeyance until some document comes into their possession, for example a court decision from a foreign judicial process that has not yet concluded. This rule does not apply to such requests because this rule only applies where the party has and submits a copy of the document that it wants the Board to consider, per Rule 43(2). Instead, requests for leave to provide documents post-hearing, and to refrain from providing a decision until such documents are provided are not strictly assessed under Rule 43, but should instead be considered based on the Board's plenary jurisdiction.

Requests to submit a document post-hearing that the claimant does not have in their possession are not made pursuant to Rule 43
At times, a party will request that a proceeding be held in abeyance until some document comes into their possession, for example a court decision from a foreign judicial process that has not yet concluded. RPD Rule 43 does not apply to such requests because this rule only applies where the party has and submits a copy of the document that it wants the Board to consider, per Rule 43(2). Instead, requests for leave to provide documents post-hearing, and to refrain from providing a decision until such documents are provided are not strictly assessed under Rule 43, but should instead be considered based on the Board's plenary jurisdiction. The court has held that fundamental justice requires a tribunal to delay its decision if it knows that, given a reasonable time, an applicant can obtain a crucial document.

In some cases, such requests will relate to an ongoing foreign process, such as a trial in another country. The general approach is to decline to hold a proceeding in abeyance pending the outcome of a foreign process, but it should be noted that, when considering the overall scheme of the Act, in cases where the person has been charged with an offence in Canada punishable by ten or more years, and the criminal proceedings are still pending, the officer has the discretion to await the outcome of the trial before making a determination as to an individual's admissibility to file a claim. As such, there is some precedent in the IRPA for putting proceedings into abeyance pending another proceeding's conclusion and documents related thereto becoming available.

In Faysal v. Canada, the court commented that the RAD did not act fairly where it concluded that an appellant had not established his identity, without waiting on the results of his passport application, the result of that process potentially being determinative of his identity: "The Applicant’s enrollment date for the passport application was January 11, 2019. Based on the NDP, the Applicant’s passport may therefore not be verified until January 11, 2020. The RAD, however, issued its decision on October 9, 2019 — well within the six to twelve month verification process outlined in the NDP. ... [T]he RAD...had the ability to assess the application’s results after it had run its expected course. I find that the RAD’s failure to do so, in light of the passport’s materiality, renders its decision unreasonable."

The court held in Gulamsakhi v. Canada that the Board should generally have a liberal approach to allowing reasonable requests to submit post-hearing documents given the issues that are usually at stake in refugee claims:"In my opinion, in the circumstances of this case, the RPD erred in refusing to grant the Applicant an adjournment or permission to file evidence later. All adjournments require a balancing of the many circumstances of the case. Here, the primary error was that the RPD did not factor into its balancing the consequences of deportation for this Applicant. ... In the present case, particularly given the potentially horrific fate awaiting the Applicant, not only at the hands of her husband but also at the hands of criminal and possibly religious justice authorities, and given little prejudice an adjournment would realistically cause the RPD or Canadian authorities, in my view in the circumstances overall fairness required the RPD to grant the adjournment to enable the Applicant to provide the RPD with the corroborating documents it was requested."See also: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing.

If credibility concerns emerge from documents submitted by a claimant post-hearing, the panel generally need not resume the hearing
The general rule is that the RPD has no obligation to return to a claimant with concerns arising from their own post-hearing submissions. The court has stated that "To do so would be onerous on the RPD. It must be kept in mind that it was up to the Applicants to submit credible and corroborative evidence to support their claim." This conclusion may differ where the Minister is involved in a proceeding and their post-hearing submissions raise issues as to the credibility of the claimant, or vice versa. See also: Canadian Refugee Procedure/RPD Rules 3-13 - Information and Documents to be Provided.