Canadian Refugee Procedure/RPD Rule 29 - Intervention by the Minister

Relevant IRPA Provision

The relevant provision in the Act is s. 170(e), which reads:

Proceedings

170 The Refugee Protection Division, in any proceeding before it,
(e) must give the person and the Minister a reasonable opportunity to present evidence, question witnesses and make representations;

The rate of Ministerial interventions in Refugee Protection Division hearings

For details on the rate at which the Minister intervenes in Refugee Protection Division proceedings, see: Canadian Refugee Procedure/RPD Rules 26-28 - Exclusion, Integrity Issues, Inadmissibility and Ineligibility#How often does the Minister participate in proceedings at the Board?.

The Minister is permitted to intervene in proceedings, but is not required to do so

The Minister is not required to intervene and bring forward evidence available to it prior to a refugee hearing.

Rule 29

The text of the relevant rule reads:

Intervention by the Minister

Notice of intention to intervene

29 (1) To intervene in a claim, the Minister must provide
(a) to the claimant, a copy of a notice of the Minister’s intention to intervene; and
(b) to the Division, the original of the notice, together with a written statement indicating how and when a copy was provided to the claimant.

Contents of notice
(2) In the notice, the Minister must state
(a) the purpose for which the Minister will intervene;
(b) whether the Minister will intervene in writing only, in person, or both; and
(c) the Minister’s counsel’s contact information.

Intervention — exclusion clauses
(3) If the Minister believes that section E or F of Article 1 of the Refugee Convention may apply to the claim, the Minister must also state in the notice the facts and law on which the Minister relies.

Time limit
(4) Documents provided under this rule must be received by their recipients no later than 10 days before the date fixed for a hearing.

History of this Rule

The equivalent rule in the previous 2002 version of the Rules read:

INTERVENTION BY THE MINISTER

Notice of intention to intervene
25. (1) To intervene in a claim, the Minister must provide
(a) to the claimant, a copy of a written notice of the Minister’s intention to intervene; and
(b) to the Division, the original of that notice and a written statement of how and when a copy was provided to the claimant.

Contents of notice
(2) In the notice, the Minister must state how the Minister will intervene and give the Minister’s counsel’s contact information.

Intervention — exclusion clauses
(3) If the Minister believes that section E or F of Article 1 of the Refugee Convention may apply to the claim, the Minister must also state in the notice the facts and law on which the Minister relies.

Time limit
(4) Documents provided under this rule must be received by the Division and the claimant no later than 20 days before the hearing.

Comparing this version of the rule to the current version of the rule, one can see that the current version of the rules introduced changes to the requirements for the contents of the notice (the former Rule 25(2)) and also changed the timeline provided for in the former Rule 25(4).

Rule 29(2)(a) requires that the Minister provide a notice stating the purpose for which it will intervene

Rule 29(2)(a) provides that in order for the Minister to intervene in a claim and thus become a party to the proceedings, the Minister must provide a Notice of Intervention, and this Notice must state the purpose for which they are intervening in the claim. The Notice of Intervention should go beyond identifying what the Minister wishes to do at the hearing and should state why they want to do it, e.g. what determinative issues are at play in the hearing. For example, in one case the Minister provided a notice of intervention which identified their purposes as “appearing through Minister’s counsel at the proceedings to present evidence, question witnesses and make representations.” The Division held that this notice did not actually identify any purpose for the intervention and thus did not meet the requirements imposed by the rules:

They are merely listing what they intend to do at the hearing as opposed to why they are doing it. The Minister has not stated what their purpose is for filing their intervention; they have simply recited the obvious role Minister’s counsel will play at the hearing when they appear in person once they become a party. The statement in the notice made by Minister’s counsel that is defined as their “purpose” are descriptions of actions and not the reasons behind those actions, and therefore do not constitute a statement of purpose at all.

In that case, the Board declined to allow the Minister's intervention on the basis that the intervention notice was insufficiently specific. The rationale for this decision is strengthened by comparing the current version of the rules to its predecessor reproduced above. Whereas the previous version of the rules only required that the Minister state "how" they would intervene, this was modified to require that the Minister identity the "purpose" of their intervention in the current version of the rules. As discussed in the reasons above, the Board identified in its public commentary at the time of this change that this modification was made in order to ensure that claimants had better notice of the reasons why the Minister would be intervening in the upcoming proceeding.

The Board has noted that "the level of detail required in the Notice is fact driven and may vary from case to case". A description of the issues the Minister will raise at the hearing or identifying the specific facts and issues of the intervention are not necessarily required. It is common that such notices simply indicate that the Minister is intervening on an issue such as "credibility" or that it indicates that the Minister is intervening "in all aspects of the claim". What a claimant can expect from such statements is exemplified by the following passage from a University of Ottawa guide for refugee claimant which describes the process: "If [IRCC] has sent a Minister’s Counsel to your hearing, you will have already been informed of the reason why (for example [IRCC] suspects you are misrepresenting your identity) and the Minister’s Counsel will ask questions relating to those concerns."

Where the Notice of Intervention is deficient in this respect, the Division should generally decline to allow the Minister's intervention, while inviting them to submit a notice of intervention that complies with the requirements of the rules. See the reasons of Member Davidson of the Refugee Protection Division for an example of this approach. However, where there would not be enough time to allow the Minister to do this prior to the hearing date, then see the following commentary.

Rule 29(4) provides that a claimant is entitled to 10 days of notice of the purpose of any Ministerial intervention

Under Rule 29(4), claimants are entitled to notice of the purpose of any Ministerial intervention under this Rule at least 10 days before the hearing. This mirrors the requirement that the Board provide advance notification to the Minister that certain issues may arise in a claim and the way that that is a substantive right that the claimant is entitled to: Canadian Refugee Procedure/The right to a fair hearing#Rules creating an obligation to notify the Minister ensure that a claimant will have advance notice of particular types of issues. Where this notice requirement has not been complied with, what should a panel of the Board do?

• The Board may waive this notice requirement, including pursuant to Rule 71: Canadian Refugee Procedure/General Provisions#Effect of Rule 71 where the Division has not explicitly changed the requirement of a rule. This may properly be done where there is no prejudice to the claimant as a result of the lack of notice or any potential prejudice can be ameliorated through post-hearing submissions. For example, in El Haddad c. Canada the Minister intervened on the issue of exclusion. At the hearing, the Minister stated that they would not be pursuing the exclusion matter, but wished to provide submissions on the claimant's credibility. On judicial review, the claimant challenged their ability to do so on the basis that they had not provided the advance notice required by Rule 29 that they would be intervening for that purpose. The court held that the Board had not erred in allowing the Minister to provide submissions on credibility in these circumstances given that the Minister did not question the claimant but only provided legal submissions at the close of the hearing, and given that the issue they provided submissions on, credibility, is one that is always at issue in hearings.
• The Board may postpone the commencement of proceedings so that the claimant receives the requisite amount of notice.
• The Board may err if it proceeds with the hearing and denies the Minister the ability to participate. Section 170(e) of the IRPA provides the Minister with a right to participate in the hearing: "The Refugee Protection Division, in any proceeding before it, ... must give the person and the Minister a reasonable opportunity to present evidence, question witnesses and make representations". In Canada v. Atabaki the Minister's notice of intervention indicated that they would intervene related to exclusion, but did not indicate that they would intervene on issues of credibility. The Member accordingly denied the Minister the ability to question the claimant regarding issues of credibility. The court held that this approach was in error and remitted the matter to be redetermined by the Board. That said, it should be noted that this case concerned the previous version of the RPD Rules, which had a different requirement for Ministerial notice, and so that may affect the decision's ongoing applicability.

Rule 29(2)(b) provides that a claimant is entitled to advance notice where the Minister will be intervening in person

Rule 29(2)(b) provides that the Minister's notice of intervention must state whether the Minister will intervene in writing only, in person, or both. Member McSweeney of the Refugee Appeal Division has considered the effect of a violation of this rule in a published decision. In that case, the Minister's intervention notice had not indicated whether or not the Minister would be intervening in person. When the Minister's delegate appeared at the hearing and sought to question the claimant, counsel for the claimant objected to the Minister being able to do so because of the lack of notice as required by the rules. The claimant and their counsel did not have an opportunity to prepare for questioning by the Minister given the lack of notice before the second sitting. The Refugee Appeal Division held that it was wrong to have allowed the questioning to proceed in such circumstances, this rendered the proceeding unfair, and a new hearing was consequently ordered by the RAD.

A Minister's Notice of Intention to Intervene must be in the language of the proceeding

Any documents that the Minister provides in a proceeding, including the Notice of Intention to Intervene, must be in the language of the proceedings: Canadian Refugee Procedure/Documents#The language the Minister must use in oral and written pleadings. Thus, for example, where a claimant elects to proceed with their case in French and the Minister provides a Notice of Intention to Intervene in English, a claimant will be right to object that they have not received proper notice as required by Rule 29.