Immigration Appeal Division Rules (SOR/2002-230)

Language of the Appeal

Marginal note:Choice of language

• 17 (1) A person who is the subject of an appeal must choose English or French as the language of the appeal. If the person is appealing, the person must indicate their choice in the notice of appeal. If the Minister is appealing, the person must notify the Division and the Minister of their choice in writing. The notice must be received by the Division and by the Minister no later than 20 days after the person received the notice of appeal.

• Marginal note:Changing the choice of language

  (2) A person who is the subject of an appeal may change the choice of language by notifying the Division and the Minister in writing. The notice must be received by the Division and the Minister no later than 20 days before the next proceeding.

Marginal note:Need for an interpreter

• 18 (1) If a party or a party’s witness needs an interpreter for a proceeding, the party must notify the Division in writing and specify the language or dialect of the interpreter. The notice must be received by the Division no later than 20 days before the proceeding.

• Marginal note:Interpreter’s oath

  (2) The interpreter must take an oath or make a solemn affirmation to interpret accurately.

Designated Representative

Marginal note:Duty of counsel to notify

• 19 (1) If counsel for either party believes that the Division should designate a representative for the person who is the subject of the appeal because they are under 18 years of age or unable to appreciate the nature of the proceedings, counsel must without delay notify the Division in writing. If counsel is aware of a person in Canada who meets the requirements to be designated as a representative, counsel must provide the person’s contact information in the notice.

• Marginal note:Requirements for being designated

  (2) To be designated as a representative, a person must

  • (a) be 18 years of age or older;

  • (b) understand the nature of the proceedings;

  • (c) be willing and able to act in the best interests of the person to be represented; and

  • (d) not have interests that conflict with those of the person to be represented.

Proceedings in an Appeal

Alternative Dispute Resolution Process

Marginal note:Participation in the alternative dispute resolution process

• 20 (1) The Division may require the parties to participate in an alternative dispute resolution process in order to encourage the parties to resolve an appeal without a hearing.

• Marginal note:Dispute resolution officer

  (2) The Division must assign a member of the Division or any other person to act as a dispute resolution officer for an appeal that uses the alternative dispute resolution process. A member who acts as a dispute resolution officer for an appeal must not hear that appeal.

• Marginal note:Obligations of parties and counsel

  (3) The parties and their counsel must

  • (a) participate in the alternative dispute resolution process in good faith;

  • (b) follow the directions given by the Division with respect to the process, including the manner of participation;

  • (c) disclose to each other and the Division any document to be relied on in the process, and any document that the Division requires to be prepared or disclosed; and

  • (d) be prepared as a party, or have authority as counsel, to resolve the appeal.

• Marginal note:Confidentiality

  (4) Any information, statement or document that any person gives in an alternative dispute resolution process is confidential. It must not be disclosed later in the appeal or made public unless

  • (a) it was obtained in a way that was not part of the alternative dispute resolution process;

  • (b) it relates to an offence under the Act, or a breach of these Rules; or

  • (c) the person who gave the information, statement or document agrees to its disclosure.

• Marginal note:Agreement

  (5) An agreement to resolve an appeal that is reached through the alternative dispute resolution process must be in writing, signed by the parties or their counsel and approved by the Division. An agreement to resolve an appeal is not confidential under subrule (4).

Conference

Marginal note:Requirement to participate at a conference

• 21 (1) The Division may require the parties to participate at a conference to discuss issues, relevant facts and any other matter that would make the appeal more fair and efficient.

• Marginal note:Information or documents

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

• Marginal note:Written record

  (3) The Division must make a written record of any decision or agreement made at the conference.

Fixing a Date for a Proceeding

Marginal note:Fixing a date

22 The Division may require the parties to participate in a scheduling conference or otherwise give information to help the Division fix a date for a proceeding.

Notice to Appear

Marginal note:Notice to appear

23 The Division must notify the parties of the date, time and location of a proceeding.

Subject of an Appeal in Custody

Marginal note:Custody

24 The Division may order a person who holds a person who is the subject of an appeal in custody to bring the person in custody to a proceeding at the location specified by the Division.

Proceeding in Writing

Marginal note:Proceeding in writing

• 25 (1) Instead of holding a hearing, the Division may require the parties to proceed in writing if this would not be unfair to any party and there is no need for the oral testimony of a witness.

• Marginal note:Exception

  (2) Subsection (1) does not apply to an appeal against a decision made outside Canada on the residency obligation.

Stay of Removal Order

Marginal note:Application to reconsider an appeal

• 26 (1) If the Division has stayed a removal order, a party who makes an application to the Division to reconsider the appeal must

  • (a) follow rule 43, but the party is not required to give evidence in an affidavit or statutory declaration; and

  • (b) provide with their application a written statement of whether the subject of the appeal has complied with the conditions of the stay.

• Marginal note:Response

  (2) The other party must respond to the application and provide with their response a written statement of whether the subject of the appeal has complied with the conditions of the stay.

• Marginal note:Reconsideration on Division’s own initiative

  (3) If the Division reconsiders an appeal on its own initiative, the Division must notify the parties. The parties must provide to the Division and each other, within the time period specified by the Division, a written statement of whether the subject of the appeal has complied with the conditions of the stay.

Marginal note:Notice requirement — cancellation of stay

• 27 (1) If a stay of removal is cancelled under subsection 68(4) of the Act, the Minister must provide the Division and the subject of the appeal with written notice of the cancellation.

• Marginal note:Content of notice

  (2) In the notice, the Minister must state

  • (a) the name of the person convicted;

  • (b) the date and place of conviction;

  • (c) the offence and relevant provision of an Act of Parliament; and

  • (d) if the offence is not punishable by a maximum term of imprisonment of at least 10 years, the term of imprisonment that was imposed.

• Marginal note:Proof that document was provided

  (3) The Minister must provide to the Division, together with the written notice, a written statement of how and when the notice was provided to the subject of the appeal.

Documents

Form and Language of Documents

Marginal note:Documents prepared by party

• 28 (1) A document prepared for use by a party in a proceeding must be typewritten on one side of 21.5 cm by 28 cm (8½" x 11") paper and the pages must be numbered.

• Marginal note:Photocopies

  (2) Any photocopy provided by a party must be a clear copy of the document photocopied and be on one side of 21.5 cm by 28 cm (8½" x 11") paper and the pages must be numbered.

• Marginal note:Numbered documents

  (3) A party must number consecutively each document provided by the party.

• Marginal note:List of documents

  (4) If more than one document is provided, the party must provide a list of the documents and their numbers.

Marginal note:Language of documents — subject of the appeal

• 29 (1) 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.

• Marginal note:Language of documents — Minister

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

• Marginal note:Translator’s declaration

  (3) A translator’s declaration must include the translator’s name, the language translated and a statement signed by the translator that the translation is accurate.

Disclosure of Documents

Marginal note:Disclosure of documents by a party

• 30 (1) If a party wants to use a document at a hearing, the party must provide a copy to the other party and the Division.

• Marginal note:Proof that document was provided

  (2) Together with the copy provided to the Division, the party must provide a written statement of how and when a copy was provided to the other party.

• Marginal note:Time limit — general

  (3) Subject to subrule (4), documents provided under this rule must be received by the Division and the other party

  • (a) no later than 20 days before the hearing; or

  • (b) if the document is provided to respond to another document provided by the other party, no later than 10 days before the hearing.

• Marginal note:Time limit — medical documents

  (4) A medical document provided in an appeal based on inadmissibility on health grounds must be received by the Division and the other party no later than 60 days before the hearing or, if the document is provided to respond to another medical document, no later than 30 days before the hearing.

Marginal note:Use of undisclosed documents

31 A party who does not provide a document as required by rule 30 may not use the document at the hearing unless allowed by the Division.

Providing a Document

Marginal note:General provision

32 Rules 33 to 36 apply to any document, including a notice or request in writing.

Marginal note:Providing documents to the Division

• 33 (1) A document provided to the Division must be provided to the registry office specified by the Division.

• Marginal note:Providing documents to the Minister

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

• Marginal note:Providing documents to the subject of an appeal

  (3) A document provided to a person who is the subject of an appeal must be provided to the person or, if the person has counsel, to their counsel.

Marginal note:How to provide a document

34 A document can be provided in any of the following ways:

• (a) by hand;

• (b) by regular mail or registered mail;

• (c) by courier or priority post;

• (d) by fax if the recipient has a fax number and the document has no more than 20 pages, unless the recipient consents to receiving more than 20 pages; and

• (e) by electronic mail if the Division allows.

Marginal note:If document cannot be provided under rule 34

• 35 (1) If a party is unable to provide a document in a way required by rule 34, 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.

• Marginal note:Form of application

  (2) The application must be made under rule 43.

• Marginal note:Factor

  (3) The Division may allow the application if the party has made reasonable efforts to provide the document to the other party.

Marginal note:When a document is considered received by the Division

• 36 (1) A document provided to the Division is considered to be received by the Division on the day the document is date stamped by the Division.

• Marginal note:When a document sent by regular mail is considered received by a party

  (2) A document sent to a party by regular mail is considered to be received seven days after the day it was mailed. A document sent to a party by regular mail to or from a place outside Canada is considered to be received 20 days after the day it was mailed. If the seventh day or the twentieth day, as the case may be, is a Saturday, Sunday or statutory holiday, the document is considered to be received on the next working day.

Witnesses

Marginal note:Providing witness information

• 37 (1) If a party wants to call a witness, the party must provide in writing to the other party and the Division the following witness information:

  • (a) the witness’s contact information;

  • (b) the time needed for the witness’s testimony;

  • (c) the party’s relationship to the witness;

  • (d) whether the party wants the witness to testify by videoconference or telephone; and

  • (e) in the case of an expert witness, a report signed by the expert witness giving their qualifications and summarizing their evidence.

• Marginal note:Proof that document was provided

  (2) The witness information must be provided to the Division together with a written statement of how and when it was provided to the other party.

• Marginal note:Time limit

  (3) Documents provided under this rule must be received by their recipients no later than 20 days before the hearing.

• Marginal note:Failure to provide witness information

  (4) If a party does not provide the witness information as required under this rule, the witness may not testify at the hearing unless the Division allows the witness to testify.

Marginal note:Requesting a summons

• 38 (1) A party who wants the Division to order a person to testify at a hearing must make a request to the Division for a summons, either orally at a proceeding or in writing.

• Marginal note:Factors

  (2) In deciding whether to issue a summons, the Division must consider any relevant factors, including

  • (a) the necessity of the testimony to a full and proper hearing;

  • (b) the ability of the person to give that testimony; and

  • (c) whether the person has agreed to be summoned as a witness.

• Marginal note:Using the summons

  (3) If a party wants to use a summons, the party must

  • (a) provide the summons to the summoned person by hand;

  • (b) provide a copy of the summons to the Division with a written statement of how and when the summons was provided; and

  • (c) pay or offer to pay the summoned person the applicable witness fees and travel expenses set out in Tariff A of the Federal Court Rules, 1998.