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IMMIGRATION APPEAL DIVISION (IAD)
Alternative Dispute Resolution (ADR)
Program Protocols
(amended: January 13, 2003)
TABLE OF CONTENTS
PROTOCOLS
PROTOCOL - MEETING PARTIES
Toronto
- Check the assigned Alternative Dispute Resolution (ADR)
room to confirm that Minister's counsel has arrived. Substantive issues
relating to the case should not generally be discussed at this point.
- If an interpreter has been ordered, check for attendance. If the interpreter
has not arrived, ask the Case Clerk to call the Interpreter's Unit.
- Shortly before the ADR
Conference is scheduled to begin, go to the 2nd floor reception to call
the Appellant (and counsel, if the Appellant is represented).
- Escort the Appellant and counsel to the ADR
room.
- If the Appellant (and/or counsel, if represented) has not arrived
on time, check at reception every five minutes until arrival or a period
of thirty minutes has elapsed.
- If the Appellant (and/or counsel, if represented) arrives late, remind
them of the importance of a timely start.
- If the Appellant arrives but counsel does not, seek the direction
of the party as to whether he or she wishes to proceed. Determine whether,
in the circumstances, it is appropriate to proceed.
- If the Appellant does not arrive (or counsel does not arrive and he
or she is a necessary participant) consider, as appropriate:
- calling the Appellant or counsel's office;
- rescheduling to another date;
- treating the case as a "no show" and referring to "no
show" court.
- If Minister's counsel does not appear, call the Citizenship and Immigration
Canada (CIC)
office at [telephone number].
- If a support person or observer presents, handle in accordance with
"Protocol - Support Persons and Observers."
- When all necessary participants are in the room, begin the ADR
Conference.
Vancouver
The procedure is as above, except:
- Minister's counsel proceeds to the ADR
room.
- After receiving notification that the Appellant (and counsel) have
arrived, escort the participants to the ADR
room on the other floor.
- If Minister's counsel does not appear, call the CIC
office at
[telephone number].
PROTOCOL - SUPPORT PERSONS AND OBSERVERS
Support Persons
Note: "Support Persons" refer to those other than counsel.
Given the nature of the ADR
process and the limited time available, support persons will not generally
participate in the ADR
conference. If they are involved, their participation should generally
be restricted to answering questions.
- If a support person arrives, deal with their role at the outset.
- Explain that ADR
is generally limited to the parties and their representatives and ask
the party who brought the support person what the support person's intended
role is. The role sought may or may not be appropriate in the circumstances.
- The party may request, for example, that the support person:
- Participate fully in the ADR
session (including speaking in plenary and in caucus);
- Support the party throughout the ADR
session but not play an active role (not speaking in plenary and/or
in caucus);
- Be available for support in caucus only;
- Be available for support outside the ADR
process (for example, by waiting in reception).
- If the party indicates that the support person is there to provide
support outside the ADR
process, invite the support person to wait in reception and advise that,
subject to confidentiality requirements, the party may access the support
person during breaks.
- Consider, as appropriate, informing Minister's Counsel of support
persons whom the Appellant advises will not be coming into the room
but will be waiting in reception.
- If the party wants to pursue having the support person participating
in the ADR
session or supporting the party in plenary and/or in caucus, ask the
support person to sit outside while the issue is discussed. Further
explain that Minister's counsel must agree to any degree of involvement
of the support person.
- Ask Minister's counsel for his/her views.
- If Minister's counsel consents, advise the support person and proceed.
Note that the support person's involvement should not generally involve
participation at the table beyond answering questions asked of them.
The support person should make an undertaking to that effect.
- If Minister's counsel does not consent, explore whether there is some
way to accommodate the interests of the Appellant and Minister's counsel.
- If there is no agreement, exclude the support person. Given the time
limitations on ADR
sessions, deal with the issue as expeditiously as possible.
- If a support person is involved, ensure that s/he agrees to be bound
by confidentiality.
Observers
- If an observer (for example, government official, consultant, or student)
requests permission to attend an ADR
session, consider the merits and advise.
- If you grant permission, explain that their attendance is conditional
upon the approval of the parties and counsel.
- Advise observers that they must not speak or disrupt the ADR
in any way and that they must keep any identifying information confidential.
- Seek permission from the parties either in advance of the mediation
or upon meeting them at the outset of the ADR
Conference and explain the purpose of the observation.
PROTOCOL - OPENING STATEMENT BY DISPUTE RESOLUTION OFFICERS
(DROs)
The opening statement made by DROs serves two principal purposes:
- sets the tone for the session and puts the parties and representatives
at ease; and
- conveys critical information about the ADR
process.
The opening also serves to reduce the power that resides in the Minister's
counsel. Noted below are key areas that must be addressed. The italicized
portions provide suggested language. DROs should maintain adherence to
this language as much as possible to provide consistency in:
- the way in which they conduct ADR
sessions; and
- the way in which ADR
sessions are conducted generally by DROs within the Immigration Appeal
Division (IAD).
Welcome and Introductions
- Welcome parties and representatives.
- Introduce yourself and invite all participants to introduce themselves
to each other.
- Address participants by their surnames.
- I'm going to tell you about the ADR
process and our various roles and ask some questions of both parties.
When I'm finished, Minister's counsel will likely want to ask the Appellant
some questions.
Nature of the ADR
Process
- This ADR
process is provided by the IAD
to give you an early opportunity to resolve your case. For the Appellant,
it's a chance to tell your story. For Minister's counsel it's an opportunity
to review and discuss information relevant to the case.
- If your case does not resolve through ADR,
your rights to a hearing are not affected by participation in this ADR
session.
- The ADR
process is informal.
Roles of the Participants
- As DRO,
my role is to assist the parties in discussing the issues raised by
the refusal.
- I will not decide the outcome of this case. I will assist the parties
to discuss the case objectively and impartially.
- I am a member of the IAD.
I am not employed by Citizenship and Immigration Canada (CIC)
as Minister's counsel is. If this case goes to hearing, another person
will hear it without receiving information from me. The hearing will
be a fresh start.
- I may, however, provide you with an evaluation of the case - what
I think would happen if the case went to hearing.
- Please feel free to ask questions of me now or at any time.
- Minister's counsel is the representative of the Minister
of CIC
who is required to uphold the immigration laws of Canada and has discretion
to decide whether to recommend that this appeal be allowed.
- The original decision refusing the Applicant was made by a visa officer
overseas - not by Minister's counsel.
- Appellants are encouraged to participate fully in the ADR
session by providing relevant information and discussing the merits
of their case with Minister's counsel.
- Appellants' counsel are also encouraged to play a meaningful
role by supporting the Appellant, assisting the Appellant to bring forward
information that would be helpful, and providing their perspective on
the case.
Confidentiality
- [Hand out sheet entitled "Explanation of Confidentiality"].
- The ADR
session is confidential. What is said and produced for the ADR
session is not to be used by one party against the other if the case
goes to hearing.
- For example, Minister's counsel cannot introduce something said at
the ADR
Conference to cross-examine the Appellant at a hearing. However, information
you provide can be disclosed if it is independently available, relates
to an offence under Canadian Immigration legislation or a breach of
the Immigration Appeal Division Rules, or you consent.
- Each participant is free to take notes. Minister's
counsel and the Appellants' counsel may share notes or other
information with their colleagues. My notes will not go into the hearings
file. You should not use laptop computers or recording devices for
purposes of taking notes during an ADR Conference unless I am satisfied
that special circumstances exist.
- Do you have any questions about what I have said or about the sheet
entitled "Explanation of Confidentiality"?
Caucus
- I will likely caucus (have a private meeting) with each party at some
point during the ADR
session.
- Caucuses are used most often to discuss each party's views about the
prospects of settlement and options for settlement.
- I may share what you say to me in caucus with the other party if I
think it would be helpful unless you specifically ask me to keep certain
information confidential.
- Feel free to ask for a caucus with me at any time or, Appellant, to
request a private meeting with your counsel. Anything you say at that
meeting is completely confidential.
Potential Outcomes
- There are a number of potential outcomes in this case.
- If Minister's counsel is satisfied with the information provided,
s/he will recommend that the appeal be allowed and the sponsorship application
will continue to be processed. The standard that Minister's counsel
will use is the likelihood of the case being allowed at a hearing.
- The recommendation is subject to the approval of the tribunal.
- If Minister's counsel is not satisfied, the Appellant has two choices;
namely, to withdraw the appeal or to proceed to hearing.
Other Matters
- The ADR
session has been scheduled for approximately one hour. If you need a
break at any point, please let me know.
- The session will work better if parties listen carefully to each other.
If you have a question that comes to mind while the other person is
speaking, please hold it until the other person is finished.
- Are there any questions about the process?
Introductory Questions
- Questions must be tailored to the case. The following are examples:
- For Appellant:
- Why is it important to you that your relative come to Canada?
- Tell us about your relationship and how it developed.
- What is your understanding as to why your sponsorship application
was refused? What is your understanding of the issues?
- For Minister's counsel:
- What are your main concerns in this case?
- Why is it important that we canvas this case thoroughly?
EXPLANATION OF CONFIDENTIALITY
ADR
is a confidential process. If your case does not settle through ADR,
what is said during the ADR
process cannot be used by either party against the other during the hearing.
However, information you provide can be disclosed if it is independently
available, relates to an offence under Canadian Immigration legislation
or a breach of the Immigration Appeal Division Rules, or you consent.
Documents that you use for the ADR
Conference will not go on the hearing file unless you agree. Each participant
may take notes at the ADR
Conference. Your counsel and Minister's counsel may share the information
they get through this process with their colleagues. DROs will not share
information with members who could hear your case if it does not resolve.
An agreement to resolve is not confidential.
PROTOCOL - OVERCOMING IMPASSES
You may encounter impasses during the ADR
session. Impasses may occur at any stage of the process. They may be caused
by psychological unwillingness to settle a dispute, lack of trust, poor
communication, unrelated interests, intransigence, the undesirability
of solutions under consideration etc. Impasses may be overcome through
the actions of the parties or through your assistance. Some of the techniques
useful for overcoming impasses include:
- Improving lines of communication
- Reality-checking
- Caucusing
- Option generation
- Adjournment
- Use of outside expert/evaluator
- Modifying the dispute resolution process
PROTOCOL - CAUCUSES
Caucuses are generally held because of internal dynamics relating to:
- Substantive issues (e.g., seeking private evaluation from DRO,
highlighting concerns about other party's case, exploring options, breaking
impasses);
- Process issues (e.g., educating a party about the process; exploring
any discomfort with the process, addressing improper conduct, preventing
premature commitment to a position);
- Relationship issues (e.g., to provide relief when emotions are running
very high).
Practice Guidelines:
- In your opening statement, advise the parties of the possibility of
caucusing, describe a caucus, and explain the confidentiality rule (see
"Protocol - Opening Statement by DRO").
- Hold as much of the ADR
session as possible in plenary. Hold caucuses when one is requested
by a party or counsel or when you have a particular reason for holding
a caucus. You should generally refrain from holding caucuses until the
parties have had a sufficient opportunity to interact and develop rapport.
- If you caucus with one party, ensure that you caucus with the other
party afterwards.
- If a party asks to caucus alone with his/her counsel, arrange for
such as soon as is practicable.
- Similarly, if a party asks to caucus with you, arrange for such as
soon as is practicable.
- If a party is represented, caucus with party and counsel together
unless they request otherwise. If you think it is necessary to speak
to counsel alone (e.g., to speak about a conduct issue), ensure that
the client is agreeable.
- When you decide to caucus with one party, take the following steps:
- Announce in plenary that you are going to hold a caucus;
- Identify the party you will meet with first;
- Describe the purpose of the caucus;
- Estimate the length of time you intend to spend in caucus; and
- Provide some suggestions as to what the other party might consider
while you are away.
- In each and every caucus session, repeat the confidentiality rule
and clarify it if asked. Advise that you may share information provided
in caucus with the other party if you think it will be helpful, unless
the party specifically instructs you not to. If the parties are hesitant
about the confidentiality rule, advise parties that they are free to
select a confidentiality rule that requires you to obtain their approval
before sharing information if they prefer.
- In accordance with general practice, evaluations should generally
be delivered in caucus to allow the strengths and weaknesses of each
party's case to be reviewed privately.
- You will generally initiate a caucus with Minister's counsel first.
- When caucusing with Minister's counsel, ask for his/her view of the
case before offering any comments yourself.
- Provide an evaluation if requested by Minister's counsel. If it is
not requested, offer to provide one if appropriate.
- Do not provide legal advice. You may provide legal information about
particular legislative provisions or case law or your view of the likelihood
of success if the case proceeds to hearing, but should not advise parties
as to how to proceed in the particular circumstances of their case.
You may suggest options for resolution if the party is amenable to them.
- If the caucus session extends beyond the time you estimated, advise
the Appellant of your revised estimate.
- Ensure that you caucus with the Appellant no matter what action you
expect Minister's counsel to take. This is an important component of
the obligation to act in an impartial and even-handed way.
- If Minister's counsel has concerns about the case, use the caucus
with the Appellant to relay Minister's counsel's concerns and enquire
as to whether there is any additional information to share.
- If additional information is provided, either take it back to a caucus
with Minister's counsel to discuss or return to plenary to canvas.
- If Minister's counsel does not have concerns and is prepared to consent,
caucus with the Appellant to advise as to the process.
- Provide an evaluation if requested by the Appellant or counsel. If
it is not requested, offer to provide one if appropriate.
- Each time you complete a caucus with a party, advise the other party
(within the bounds of confidentiality) of what was accomplished in the
previous caucus. This need not be a full restatement of what was said
in caucus.
- Request that Minister's counsel return to the plenary session following
the final caucus whether or not they are willing to share much information
from caucus.
- In plenary, invite Minister's counsel to advise the Appellant as to
his/her view of the case and whether s/he will consent or not. Minister's
counsel should provide a view of the case, in general terms. If not
prepared to consent, Minister's counsel may, for example, indicate that
there are credibility issues without giving details as to inconsistencies.
- If there is no consent and withdrawal merits discussion, Minister's
counsel should remain.
- It is preferable that Minister's counsel also remain for scheduling.
- If the Appellant wishes a debrief, Minister's counsel can be released.
PROTOCOL - SUMMARIES OF AGREEMENT
- During the opening statement, the DRO
is to explain that if Minister's counsel agrees to recommend a consent
to the appeal, a Summary of Agreement form must be completed and taken
to a tribunal member for endorsement in the form of an order to check
for completeness and correctness.
- If Minister's counsel consents to an appeal at the ADR
session, a "Summary of Agreement" form is prepared by the
DRO
in consultation with the parties, to reflect the reasons for the consent.
- The Summary of Agreement is a form of recommendation to the IAD.
- The appeal still has to be allowed through an order signed by a member
of the IAD
in chambers.
- The member who reviews the agreement must not have been the DRO
in the case or have had any involvement in it. The separate roles of
members as DROs and as decision-makers must be preserved.
- The main reason for drafting the Summary is to ensure transparency
in decision-making. The document is also used by CIC
to provide the visa post with a rationale for consenting to the appeal.
- The integrity of Canadian Immigration legislation is central to the
public interest.
- The tribunal member reviews Summaries of Agreements to ensure that
the public interest is served. This does not involve a file review or
invite the member to substitute his or her view.
- The member is to:
- ensure that the issues and facts have been adequately addressed
and are set out in the document;
- ensure that there has been no error in law; and
- ensure there is nothing egregious on the face of the document.
- The DRO
is to draft the Summary of Agreement form in accordance with the agreed
terms of settlement. The DRO
should receive input from both of the parties and counsel and check
the document for completeness and correctness.
- If the ADR
session results in a withdrawal, the withdrawal form must be completed.
No substantiating information needs to be provided.
- If Minister's counsel recommends that the appeal be allowed, sufficient
information to justify that recommendation must be provided in the Summary
of Agreement.
- If Minister's counsel agrees to recommend the appeal be allowed on
certain conditions within a period of time, Minister's counsel may provide
the requisite information.
- If a Summary of Agreement is contemplated, the DRO
should advise parties at the ADR
session that the Summary of Agreement will remain on the IAD
file and is accessible as are other IAD
documents.
- If requested, the DRO
should provide a copy of the Summary to the Appellant.
- This practice is to be periodically reviewed by the IAD
to ensure that it is in accordance with governing legislation and policy.
PROTOCOL - OPTING-IN
- For case types outside the mandatory program, both parties are required
to consent to a case's inclusion.
- If fewer than 100% of cases within designated case types are selected,
opting in is allowed on the application of either party.
PROTOCOL - OPTING-OUT
- It is recognized that some cases may be unsuitable for ADR.
- Parties may mutually opt out of ADR
no less than ten days prior to the scheduled ADR
Conference date upon approval by a designated IAD
official.
- The party wishing to opt out must contact the other party.
- If the other party consents to opting-out, the instigating party must
file a notice of mutual agreement with the IAD
for consideration.
- The IAD
must respond within five days.
- The IAD
may relieve against time limits in appropriate circumstances.
- If the other party does not consent to opting-out or if the IAD
denies the request to opt out, the case proceeds to an ADR
Conference.
- The rate of opting out will be monitored carefully by the IAD
and if it exceeds more than 20% in any three-month period or it appears
to be abused, its continuation will be reviewed by the IAD.
- The following criteria will be considered by the IAD
in the exercise of its discretion as to whether or not to allow the
opting-out:
- Whether there is a serious legal, constitutional, or Charter issue;
- The novelty of the issue(s);
- Whether the case is likely to establish an important precedent;
- How significant the public interest issues are;
- Any impediment(s) to the attendance of the Appellant at an ADR
Conference; and
- Whether the parties have made genuine efforts to resolve the case
through prior discussion.
- Opting-out will be limited to those cases in which ADR
is clearly not the most appropriate dispute resolution process.
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