Effective Date: August 25, 1997
REASONS REVIEW POLICY
BACKGROUND
The Immigration and Refugee Board is a quasi-judicial tribunal composed
of decision-makers, the majority of whom are appointed by the Governor
in Council for fixed terms and whose composition changes periodically.
The decision-makers of the Board come from different walks of life
and many join the Board without legal training or related experience.
The Federal Court of Appeal in Weerasinge v. Canada (Minister of
Employment and Immigration), [1994] 1 F.C. 330 (C.A.) has stated
that the value of review of draft reasons is manifest having regard
to the composition of the Refugee Division and the nature of its decisions.
Furthermore, the Court found that the taking of legal advice on draft
reasons does not breach the rules of natural justice. Subsequently,
in Bovbel v. Canada (Minister of Employment and Immigration),
[1994] 2 F.C. 563 (C.A.), the Court upheld the Board's April 1993 reasons
review policy.
Legal Services has decided to revise the April 1993 reasons review
policy to provide for greater flexibility in the delivery of its services
to decision-makers.
OBJECTIVES
The objectives of reasons review are :
- to assist the Board in accomplishing its mission to make well-reasoned
decisions on immigration and refugee matters fairly, efficiently and
in accordance with the law;
- to assist decision-makers in accurately reflecting the rationale
for their decisions by commenting or advising, where appropriate,
on the matters set out under the section entitled "Types of Reasons
Review";
- to assist decision-makers by offering services that meet their individual
needs;
- to assist the Board in identifying topics for professional development;
and
- to assist the Board in making its caselaw accessible to decision-makers
and employees of the Board and to the public through the dissemination
of case digests in electronic version or hard copy.
APPLICATION
This policy applies to all draft reasons referred to Legal Services
for review on or after the date of this policy.
TIME LIMIT
The review of reasons shall normally be completed within 12 calendar
days of the date on which draft reasons are received by the Legal Services
region conducting the review.
MANAGEMENT
The implementation of this policy is the responsibility of senior legal
advisers whose duties include assigning legal advisers to reasons review,
developing effective review strategies, and meeting the needs of the
Divisions within their regions.
FORM
Draft reasons may be submitted in hard copy or, for greater efficiency,
in electronic version. Comments may be handwritten on, or attached to,
the hard copy of reasons or may be made as electronic annotations on
the electronic version of reasons.
TYPES OF REASONS REVIEW
Reasons review is flexible. It provides for two types of review and
allows for comments that vary according to the experience of decision-makers
and the complexity and novelty of the issues involved.
1. Standard review
For Refugee Division cases, a standard review is based on the draft
reasons without further information.
A standard review involves making succinct or amplified comments that
identify and, where appropriate, give advice on :
- essential substantive legal and procedural issues;
- alternative legal analyses, but only where they appear necessary
and expedient to resolve the issues identified in the reasons;
- potential errors of law;
- apparent inconsistencies and incoherence in the draft reasons; and
- jurisprudence, legal opinions and other legal reference materials,
Chairperson's guidelines, and policies that may be relevant to the
draft reasons.
2. Selective review
A selective review involves giving advice on an issue or issues identified
by a decision-maker.
PARAMETERS OF REVIEW
The review of reasons does not ordinarily include :
- the review of orders, except for training purposes or, for Appeal
Division cases where the subject-matter of the order is a stay of
a removal order;
- the review of the written version of oral reasons of decision-makers
experienced in giving oral reasons;
- for Refugee Division cases, the review of evidence or submissions;
- the identification of factual inconsistencies between the reasons
and information on the file; and
- the identification of errors in grammar, syntax, punctuation, spelling
or quotations unless errors adversely affect coherence.
PROCEDURES
- Legal Services offers reasons review as an optional service to decision-makers.
- The legal adviser applies the standard review unless the decision-maker
requests otherwise.
- The legal adviser makes comments on the reasons that are respectful
of the independence of the decision-maker.
- The legal adviser makes comments on the reasons that are consistent
with the objective of giving concise reasons.
- The legal adviser makes comments on the reasons that encourage the
decision-maker to focus on essential issues and analyses.
- The decision-maker is free to accept or to reject the comments made
by the legal adviser on the reasons.
- The legal adviser normally reviews reasons once, but in exceptional
circumstances, with the approval of the senior legal adviser, the
legal adviser may review the reasons a second time.
SOLICITOR-CLIENT PRIVILEGE
The routing of reasons to and from Legal Services for review and the
comments that a legal adviser makes on reasons are to be treated as
subject to solicitor-client privilege as between the participating decision-makers
and Legal Services.
Where more than one decision-maker takes part in giving a decision,
the comments that the legal adviser makes on the reasons for that decision
are available to all participating decision-makers.
The comments made by a legal adviser on reasons are not used for the
purposes of a decision-maker's performance appraisal. These comments
may, however, be used in a generic way consistent with solicitor-client
privilege to develop criteria for a performance appraisal form, to identify
training and professional development needs and areas requiring policy
development, and to anticipate the demand for legal services.
RETENTION
Legal Services will not necessarily retain a copy of comments on draft
reasons. Where retained, the reasons will be protected from unauthorized
disclosure. The comments may be used for the purposes identified above
or for Legal Services' internal management purposes.
Any comments retained will be disposed of not later than two years
after they were made.
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