Canadian Refugee Procedure/RPD Rules 55-56 - Joining or Separating Claims or Applications

RPD Rule 55

The text of Rule 55 reads:

Joining or Separating Claims or Applications

Claims automatically joined
55 (1) The Division must join the claim of a claimant to a claim made by the claimant’s spouse or common-law partner, child, parent, legal guardian, brother, sister, grandchild or grandparent, unless it is not practicable to do so.

Applications joined if claims joined
(2) Applications to vacate or to cease refugee protection are joined if the claims of the protected persons were joined.

History of this Rule

Rule 55 is identical to Rule 49 in the former RPD Rules which were in place from 2002 to 2012.

In claims that are heard jointly, one claimant will be considered the principal claimant and the others associate claimants

In claims that are heard jointly, the nomenclature "principal claimant" and "associate claimant(s)" are used. When filing a refugee claim through the online portal that is presently used, claimants are obliged to choose a "head of family"; this person normally becomes the "principal claimant" once the claim is referred from IRCC or CBSA to the Immigration and Refugee Board of Canada.

Even where claims are joined as per RPD Rule 55, each claim is still considered individually

Even where claims are joined as per RPD Rule 55, each claim is still considered individually. This flows from the principle that if an applicant has the citizenship or nationality of a country where he or she has no well-founded fear of serious harm, protected person status will be denied. The Federal Court has held on several occasions that there is no concept of family unity incorporated into the definition of Convention refugee. See also: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Each claim should be considered individually.

That said, a question can arise about how to consider an individual's risks in relation to their family members. For example, an individual who returns to their country as a single parent may face different risks than someone who returns without a child and a single woman may face different risks from a married one. The Board is to consider where such family members would likely reside in order to conduct a proper analysis of the risk facing a claimant in their home country.

Ongoing obligation on claimants to amend forms in order to disclose relationships

Claimants are under an ongoing obligation to update their Basis of Claim form to ensure that it reflects the above relationships. For example, if a claimant marries or becomes a common-law partner to another person after submitting the BOC form, but prior to a hearing being held, then the form should be updated so that any assessment required by Rule 55(1) can be conducted where the new spouse is also a claimant. The obligation to provide such updates arises from, and is reflected in, Rule 9 ("Changes or additions to Basis of Claim Form"), the fact that claimants swear or affirm at the beginning of their hearing that their Basis of Claim form is "complete, true, and correct", the instruction on the BOC form that "if your information changes or if you want to add information, you must inform the IRB", the statements in the IRB's Claimant's Guide that "If you find a mistake on your BOC Form or realize that you forgot something important, or receive additional information, you must tell the RPD", and caselaw that all the important facts of a claim for refugee protection must appear in the BOC Form.

Situations in which it is "not practicable" to join claims

It is mandatory for the Division to join the claims of the family members listed in Rule 55 unless it is not practicable to do so. How should the Division determine whether or not joinder is practicable in a given case? Joinder will be considered impracticable where, inter alia, the resultant proceeding would be procedurally unfair, inefficient, or otherwise unjust. For example, RAD Member Philip MacAulay found in one case that "if the joinder is maintained, that result would be in violation of the appellant wife’s procedural fairness rights" and on this basis separated the claims. Recourse may also be had to the factors in Rule 56(5) for discerning when it is not practicable to join claims.

While it is not necessary for the claimants to consent to their claims being joined (it being automatic that they be joined) information to this effect may support a determination that such joinder is practicable. Conversely, the instructions on the Basis of Claim form invite claimants to provide information of their own accord which would point to such joinder not being practicable. The BOC form states: "Although the confidentiality of the personal information you give in your BOC Form is protected, your information may be used in other claims that are related to yours or similar to yours, even if the other person is not claiming refugee protection with you." The instructions go on to note that "The IRB will not release the information if there is a serious possibility that releasing it will put someone's life, liberty or security in danger or is likely to cause an injustice. If you do not want your personal information to be released, please explain on a separate sheet of paper why you think there is a serious possibility that releasing your information may put someone's life, liberty or security in danger or is likely to cause an injustice." Such information regarding a listed family member would be strong prima facie evidence of joinder not being practicable.

Where the Board will act on its own motion to determine that it is "not practicable" to join claims, it is acting pursuant to Rule 70(a) of the RPD Rules, and should provide parties with the notice and opportunity to object described therein. See Canadian Refugee Procedure/Joining or Separating Claims or Applications#Division's power to, on its own motion, separate the claims of persons listed in Rule 55(1) after they have been joined below for more details.

Division's power to, on its own motion, join the claims of classes of persons not listed in Rule 55(1)

It is mandatory for the Division to join the claims of the family members listed in Rule 55 unless it is not practicable to do so. Presumptively, the claims of those in relationships that are not listed in the rule need not be joined by the Division. This reflects the principle of statutory interpretation expressio unius est exclusio alterius, the concept that when one or more things of a class are expressly mentioned, others of the same class are excluded by virtue of not having been listed. Put another way, Rule 55 could have been crafted to specify that all family members, for instance, presumptively be joined. The fact that the rule was not written this way reflects a judgment about the best way to balance efficiency, justice, and consistency in refugee proceedings. For other claims, for example the claims of friends from a country claiming at the same time, or the claims of more extended family members, the Division retains the discretion per Rules 69 and 70(a) to join them on a case-by-case basis. When exercising such discretion, as Waldman states in his text, the primary interests of the Board are efficiency and consistency. Specifically, efficiency will often point against joinder (hearings growing more complex and lengthy with more claimants, counsel, etc.) but consistency may point towards joinder in circumstances where, reading the claims jointly, some issue of program integrity arises. The factors in Rule 56(5) discussed below do not strictly apply to such a decision, but so long as this is acknowledged (see discussion of Koky v. Canada below) they may usefully guide such exercises of discretion.

Where the Board will act on its own motion to join claims for persons not listed in the above rule, it is acting pursuant to Rule 70(a) of the RPD Rules. This rule provides that "the Division may, after giving the parties notice and an opportunity to object, (a) act on its own initiative, without a party having to make an application or request to the Division". As such, where the Board will join claims of persons who are not listed in Rule 55(1), it is required by the Rules to provide parties with notice and opportunity to object before so acting.

Division's power to, on its own motion, separate the claims of persons listed in Rule 55(1) after they have been joined

The Division has the power to act on its own motion to separate claims at any time. Rule 55(1) indicates that the listed claims must be joined "unless it is not practicable to do so". The rule does not specify a timeline for assessing practicability. The relevant principle of statutory interpretation is that the law is considered to always be speaking. Section 10 of the federal Interpretation Act provides that "The law shall be considered as always speaking, and where a matter or thing is expressed in the present tense, it shall be applied to the circumstances as they arise, so that effect may be given to the enactment according to its true spirit, intent and meaning." As such, where a provision is written in the present tense, as with Rule 55(1), it is considered to be "always speaking" throughout the duration of the Board's proceedings. The Division may thus act to separate claims if it becomes clear that it is no longer practicable for them to remain joined. This is supported by the Board's plenary jurisdiction provided for in Rules 69 and 70(a), the latter of which requires that the Board give the parties notice and an opportunity to object prior to acting.

Once claims are joined, information on one claim is properly available to the other joined claimants

Refugee proceedings are, by default, confidential. This principle is enshrined in section 166 of the IRPA, which provides that proceedings before the Refugee Protection Division must be held in the absence of the public. As stated on the Basis of Claim form, "the confidentiality of the information you provide in this form is protected by the Privacy Act. Your personal information may be disclosed only in the circumstances where such disclosure is permitted under the terms of that Act and of the Access to Information Act." Sections 7 and 8 of the Privacy Act specify the circumstances under which an individual's personal information can be used and disclosed. The relevant section for this analysis is 8(2)(a), which provides that personal information may be disclosed for the purpose for which the information was obtained or compiled by the institution or for a use consistent with that purpose. The purpose for which this type of refugee claim information is obtained has been characterized as "the determination of the applicant's claim for Convention refugee status". Where proceedings are joined, by default all of the information from each claim is available to each other joined claimant as per RPD Rule 21(6). This use and disclosure of the information to ongoing claims by a claimant and their family members is considered to be consistent with the purpose for which the information was obtained. Claimants should expect that when they file a claim, if their spouse, common-law partner, child, parent, legal guardian, brother, sister, grandchild, or grandparent is also filing a claim, then their information will ordinarily be disclosed to those family members. This is reflected in the instructions provided in the Basis of Claim form that "All members of your family who are claiming refugee protection must provide their own BOC Form, even though your claims will be processed together. The information given in each person's BOC Form will be used to make decisions in the claims of the other family members."

There will be cases in which claimants are not comfortable with their personal information being disclosed to their family members. The BOC form states: "The IRB will not release [your] information if there is a serious possibility that releasing it will put someone's life, liberty or security in danger or is likely to cause an injustice. If you do not want your personal information to be released, please explain on a separate sheet of paper why you think there is a serious possibility that releasing your information may put someone's life, liberty or security in danger or is likely to cause an injustice." Claimants should identify any concerns with such information-sharing that they have when filing their claim and then it can be taken into account by the Board when determining whether it is practicable to join the claims: Canadian Refugee Procedure/RPD Rules 55-56 - Joining or Separating Claims or Applications#Situations in which it is "not practicable" to join claims.

Rule 55 decisions and confidentiality

A question can arise about providing reasons not to join claims pursuant to Rule 55(1) and the disclosure of confidential information. Rule 55(1) provides that the Division must join the claims of the above-listed family members unless it is not practicable to do so. Where the Division determines that it is not practicable to join the claims of such family members, it is expected that the Division will provide reasons for this determination to all of the claimants that would have been joined in the normal course. This is consistent with the ordinary expectation that administrative decisions will be "transparent, intelligible and justified." It is also consistent with the requirement in RPD Rule 70(a) that where the Division acts on its own initiative (in this case, to make a determination that it is not practicable to join the claims), then it will give the parties notice and an opportunity to object.

Does the Division err, or violate privacy if, in providing reasons about why it is not practicable to join claims, it discusses aspects of those claims, for example, that the languages of the proceedings differ, that the counsel involved differ, or that the subject-matter of the claims differ? No - the Division does not err where it does so. This is because claimants are told to expect that this will happen and there is no rule that prevents the RPD from doing so. First, the Basis of Claim form that claimants complete advises them to expect such disclosure: "All members of your family who are claiming refugee protection must provide their own BOC Form, even though your claims will be processed together. The information given in each person's BOC Form will be used to make decisions in the claims of the other family members." Second, Rule 21 of the RPD Rules is the rule governing disclosure of personal information, and pursuant to RPD Rule 21(3), the Division may disclose information about one claim where doing so is necessary to permit another claimant to make an informed decision about a matter involving sharing information between two claims. While there is no directly analogous provision under Rule 55, the Division has the power to disclose such information in a like manner pursuant to Rule 69 [the RPD Rule which applies in situations where there is no other applicable rule - Canadian Refugee Procedure/General Provisions#Rule 69 - No applicable rule]. Third, the Privacy Act does not prohibit such disclosure as, per s. 8(2)(a), the information is being disclosed for the purpose for which the information was obtained, namely determining the claimant's claim for refugee status, and making preliminary decisions about the manner in which that hearing will occur. The is akin to the Court's holding in Ossé v. Canada that the claimant had consented to her information being provided to a third party.

Such a result may be different where a claimant makes it clear in providing the information that they do not consent to the information being provided to a particular third party, for example because of a particularized security concern that they enumerate upon filing their claim. AB v. Canada is a relevant case, where the then-PIF form stated "Moreover, this form and the information it contains may be used as evidence at the hearings of other claimants who are related to you or whose claims appear to be closely linked to yours. Should you have a reasonable objection to this use please state it below. The Refugee Division will consider your objection based on whether the use of your form and information would endanger the life, liberty or security of any person or would be likely to cause an injustice." In the space provided under the above wording, the applicant wrote: "Requests for disclosure will be considered on a case-by-case basis. Otherwise, consent is denied." In that case, the Federal Court set aside the Board's decision to release the claimant's personal information in a related proceeding.

The IRB gender guidelines provide that "in situations where an application to separate a claim or appeal is based on gender-based violence between the co-parties, members should consider using their discretion to excuse the party seeking to separate the claim or appeal from the requirement to provide a copy of that application to the co-party."

Statistics about joinder

What percentage of claims are heard jointly, where the claim of a principal claimant is heard alongside associate claimants? Of RPD new system cases in 2018, there were 14,051 principal claimants who received a decision in their claims, and of those 4,881 had their claims joined with associate claimants. In other words, about 2/3 of all hearings involved just one claimant. Claimants from some countries are disproportionately to have their claims joined to other family members, while claimants from other countries are disproportionately likely to be claiming solo. The following are the data for each country where the Board adjudicated more than 30 new system claims in 2018:

Country	Number of principal claimants	Number of hearings with associate claimants	% of claims that were joined
Slovakia	117	87	74%
Colombia	257	182	71%
Czech Republic	47	32	68%
Hungary	269	166	62%
Venezuela	279	171	61%
Jordan	63	35	56%
Palestine	146	80	55%
El Salvador	191	101	53%
Syria	240	126	53%
Nigeria	1161	597	51%
Romania	225	114	51%
Honduras	71	35	49%
Saudi Arabia	71	34	48%
Bangladesh	116	55	47%
Lebanon	126	59	47%
Libya	108	49	45%
Angola	39	17	44%
Egypt	239	102	43%
Sudan	219	90	41%
Guatemala	58	23	40%
Iran	322	122	38%
Mexico	437	164	38%
Iraq	289	105	36%
Turkey	769	275	36%
Haiti	1573	546	35%
Russia	44	15	34%
Pakistan	569	192	34%
Yemen	259	81	31%
India	430	134	31%
Azerbaijan	135	42	31%
Burundi	235	67	29%
Djibouti	196	54	28%
Ukraine	153	42	27%
Algeria	51	13	25%
Eritrea	436	107	25%
Bahamas	53	13	25%
United States of America	73	17	23%
Zimbabwe	74	16	22%
China	752	162	22%
Ethiopia	233	48	21%
Congo, Democratic Republic	191	38	20%
Afghanistan	321	63	20%
Albania	77	15	19%
Guinea	33	6	18%
Kenya	67	11	16%
Georgia	106	17	16%
Jamaica	71	11	15%
Sri Lanka	130	20	15%
Rwanda	65	10	15%
Nepal	103	14	14%
Tanzania	42	5	12%
Chad	77	9	12%
Somalia	468	47	10%
Uganda	99	7	7%
Ghana	123	8	7%
Cameroon	141	7	5%

RPD Rule 56

Application to join
56 (1) A party may make an application to the Division to join claims or applications to vacate or to cease refugee protection.

Application to separate
(2) A party may make an application to the Division to separate claims or applications to vacate or to cease refugee protection that are joined.

Form of application and providing application
(3) A party who makes an application to join or separate claims or applications to vacate or to cease refugee protection must do so in accordance with rule 50, but the party is not required to give evidence in an affidavit or statutory declaration. The party must also
(a) provide a copy of the application to any person who will be affected by the Division’s decision on the application; and
(b) provide to the Division a written statement indicating how and when the copy of the application was provided to any affected person, together with proof that the party provided the copy to that person.

Time limit
(4) Documents provided under this rule must be received by their recipients no later than 20 days before the date fixed for the hearing.

Factors
(5) In deciding the application to join or separate, the Division must consider any relevant factors, including whether
(a) the claims or applications to vacate or to cease refugee protection involve similar questions of fact or law;
(b) allowing the application to join or separate would promote the efficient administration of the Division’s work; and
(c) allowing the application to join or separate would likely cause an injustice.

Rule 56 only applies to applications from parties, not actions on the Division's own motion

Where the Division acts of its own initiative to join or disjoin claims, it does not act pursuant to Rule 56. As is apparent from the text of this rule, it pertains to disjoinder upon application by a party. In Koky v. Canada, the Federal Court held that were the Minister had not intervened in a claim, the only parties were the claimants, and as they did not bring a motion for disjoinder, then the Division was wrong to cite Rule 56 in disjoining claims on its own motion. Instead, as per that case, where the Division wishes to act on its own motion to join or disjoin claims that are not covered by the circumstances detailed in Rule 55, then it does so through its plenary powers. See Canadian Refugee Procedure/General Provisions for a discussion of those powers, which include rules 69 and 70, and the requirements that the Division must follow before utilizing such powers, including giving parties an opportunity to object.

Application of factors in Rule 56(5)

In deciding an application to join or separate, the Division must consider any relevant factors, including those specified in Rule 56(5):

• (a) the claims or applications to vacate or to cease refugee protection involve similar questions of fact or law:
  • Similar facts: If two cases rely on much of the same evidence, efficiency and consistency would rule in favour of joinder. This involves several considerations, including:
    • Consistent decisions: The value of consistency promotes the Board's mission by ensuring that like cases receive like dispositions, and where dispositions are unlike, reasons are articulated for the differing outcomes. For example, in Hayek v. Canada, joinder was considered appropriate where two friends from Ethiopia made references to each other in their written narratives.
    • Program Integrity: Issues of program integrity are entwined with issues of consistency, for example where two claims discuss the same events, but are either inconsistent or suspiciously similar in a way that raises credibility issues. Where such issues arise, this may point towards joinder.
    • Workload and efficiency: Where claims will involve hearing the same evidence, hearing from the same witnesses, and having the same claimants act as witnesses in each other's hearings, this would point towards the efficiency of joinder because this may save hearing and member preparation time. Joining claims also avoids the potential of having to issue a summons to family members. In contrast, the fact that there are different countries of reference for different claimants will usually point against joinder on the basis that the facts to be considered will be different.
  • Similar law: Even where two matters involve similar questions of fact, it may be that the questions of law are dissimilar and thus militate against joining the matters. For example, Member Tock of the Refugee Protection Division rejected an application by the Minister to join a cessation and vacation application on the basis that "although the vacation and cessation applications may deal with similar issues, the assessment of each matter is different. The Minister is relying on the same package of evidence for both matters. However, each application requires a different assessment of the same evidence; as such, the evidence needs to be assessed in a different light for each application. Therefore, it is neither efficient and nor does it allow me to combine the same questions of law when deciding each of the applications, in accordance with the factors set out in RPD Rule 56."
• (b) allowing the application to join or separate would promote the efficient administration of the Division’s work: Factors that may be considered here include:
  • Reduced proceedings: As a starting-point, joining claims results in faster results for all parties. It avoids the duplication of presentation of evidence and and allows the Division to hear more claims by making members and hearing rooms available.
  • Counsel: Whether the claimants have the same counsel (it may be cumbersome to conduct a hearing with multiple counsel). Joining claims may involve possible saving on counsel fees for claimants.
  • Language: Whether the proceedings will be in the same language (it may duplicate or slow work if one claimant wishes to proceed in French and the other in English or if multiple interpreters are required to interpret the proceedings into different languages). This may also involve issues of fairness where counsel for one claimant does not understand the language that the other claimant is proceeding it (e.g. if one claimant is proceeding in English but counsel is only able to read documents in French, or vice versa). As a matter of fairness, in such circumstances the IRB should consider paying for the translation of all documents if it is not appropriate to separate the claims.
  • Location: Whether the claimants are in the same location or whether joining the claims would require transferring files or the use of videoconferencing. While the use of videoconferencing is not, in and of itself, unfair, it could create logistical hurdles where multiple counsel are not located in the same place and would thus face challenges conferring privately.
  • Type and stage of proceeding: This factor may point both for and against joinder, as in the following cases:
    • File-review or short hearing processes: For example, if a claim would be eligible for the file-review process but for a US-born child that could be joined to the claim, then joinder may be inappropriate. Conversely, such factors may support separating claims where, say, but for the claim of a US-born child, all of the remaining claimants would be eligible for the file-review process.
    • Designated Countries of Origin: The Federal Court has commented on this issue as follows: "The Refugee Protection Division Rules, SOR/2012-256, (Rules) require that claims of family members be joined. When, as here, this means the joining of DCO and non-DCO claims, the hearing will be scheduled along the DCO timelines, which are shorter than for non-DCO claims. However, Rule 56(2) allows a refugee claimant to make an application to the RPD to separate claims. Therefore, a procedural vehicle does exist to correct defects that can arise from joining claims together."
    • Extradition Act: Similarly, when the Division receives information regarding a refugee claimant for whom an authority to proceed has been issued under section 15 of the Extradition Act, and that person is part of a family claim, the Division may, on its own initiative, wish to separate that person’s claim from the other family members’ claims to promote the efficient administration of the Division’s work. This is because, as per s. 105(1) of IRPA, the Refugee Protection Division shall not commence or shall suspend consideration of any matter concerning a person against whom an authority to proceed has been issued under section 15 of the Extradition Act with respect to an offence under Canadian law that is punishable under an Act of Parliament by a maximum term of imprisonment of at least 10 years, until a final decision under the Extradition Act with respect to the discharge or surrender of the person has been made.
  • Readiness to proceed: If one claimant is not prepared to proceed and joining claims will delay the hearing of both claims, or would require rescheduling an existing hearing, then this may point against joinder and point towards the Board proceeding with the claimant that is ready individually.
  • Timeliness of application: Rule 56(4) requires that an application be made at least 20 days prior to the hearing. Where an application is made after this, and granting the application would necessitate cancelling a hearing and setting new hearing dates, this will point strongly against accepting the application. For example, the court endorsed the following submission from the Minister in Frederick v. Canada: "The Board could not reasonably have joined the claims, as it would have had to either preserve the applicant’s testimony up to that point on the record despite the unfairness to Handra of doing so, or else remove the two hours of testimony from the record and severely impact its ability to assess the applicant’s credibility. Given this difficult situation, as well as the applicant’s failure to bring Handra’s claim to the Board’s attention in a timely manner, the respondent submits that it was reasonable for the Board to refuse to join the claims and to delay the remainder of the applicant’s hearing until Handra’s claim was ready to be heard."
• (c) allowing the application to join or separate would likely cause an injustice:
  • Complexity of the proceeding: Combining issues may make a proceeding "exponentially more complex", limit counsel's ability to adequately prepare for the hearing, and thereby cause an injustice. For example, Member Tock of the Refugee Protection Division rejected an application by the Minister to join a cessation and vacation application involving the same claimant on this basis, stating that "although joining the matters may result in a marginally quicker conclusion, doing so would negatively impact the fairness of the proceedings. I agree with counsel’s submissions that joining the matters will exponentially complicate the case. I find that it would not be procedurally fair to the respondent to expect him to prepare to proceed with all the issues within the vacation and cessation applications at the same time."
  • The ability of one claimant to testify may be compromised by the presence of another claimant: One situation where fairness may mitigate against joinder is where there is evidence that the ability of one claimant to testify will be adversely affected by the presence of another. For example, in Amin v. Canada there was psychiatric evidence before the Board that suggested that one claimant would have difficulty testifying before another. In contrast, where claimants live together at the same address per the claimant address forms provided, this may point to it being appropriate to process their claims jointly, absent contrary information. Expected difficulty testifying may also be ameliorated in other ways, such as where the claimant that may have difficulty testifying can be represented by an independent designated representative who can provide testimony on their behalf, as with children providing testimony in cases where it is alleged that they have been kidnapped (see A.B. v. Canada as an example of such a case which was not separated).
    • A joint proceeding could inhibit a claimant's ability to disclose their SOGIESC: Section 3.9 of the Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics stipulate that "In some circumstances, individuals with diverse SOGIE may be part of joint claims or appeals that inhibit their ability to disclose their sexual orientation or gender identity or expression. When a decision-maker becomes aware that the individual wishes to assert an independent claim or appeal based on sexual orientation or gender identity or expression, the claims or appeals should, where appropriate, be separated." That said, instead of separating claims, at times panels of the Board have allowed one claimant to testify while the other claimant(s) are excused from the hearing room. Provided that all claimants consent to this, it may be an appropriate process. The claimants will, of course, need to agree on the process to be used should any credibility issues emerge during testimony while the other claimants are excused from the hearing room, should those credibility concerns impact the other joined claims, for example that the claimant who was out of the room could then listen to the audio recording. For more detail, see the commentary to section 164 of the Act: Canadian Refugee Procedure/Presence of parties and use of telecommunications for hearings.
    • A joint proceeding could inhibit a woman's ability to disclose gendered violence: International best practices for refugee status determination provide that ensuring women have the possibility of being interviewed separately from their family (both at screening and during any substantive claim) should be prioritized. Some women who have experienced and/or fear gender-based violence may not disclose in front of family members, including small children. That said, this arguably does not reflect the common practice of the IRB, which has generally been reticent to conduct separate proceedings in such circumstances.
  • A conflict of interest between claimants: The Federal Court held in Rezmuves v. Canada that where two claimants are opposed in interest, their claims should be separated so that one may cross-examine the other. The court reasoned as follows: "In the circumstances, the refusal of the disjoinder motion amounted to a violation of procedural fairness because Mr. and Ms. Resmuves were opposed in interest, Mr. Resmuves was questioned about his views on Ms. Resmuves’ claim, Ms. Resmuves was not afforded the opportunity to cross-examine Mr. Resmuves and his views about her truthfulness were used by the Member as the primary reason to reject her claim. This is fundamentally unfair as Ms. Resmuves had no ability to test the unfavourable evidence of her estranged spouse nor to point out the rather obvious reasons why, following their separation, he might be pre-disposed against her." The reasoning in this case arguably no longer applies since the current version of the rules does not limit the ability to ask questions of, or summon, any person (see, particularly, Rule 44). However, it may nonetheless be impractical to expect two claimants adverse in interest to put forward claims in the same proceeding given that this would inevitably require some degree of cooperation between the parties. For this reason, the RAD has continued to rely on this case when interpreting the current RPD rules.
  • Danger to a person: Where joining claims would endanger the life, liberty, or security of any person, then it will presumptively be considered unjust. This may be the case, for instance, where spouses are both claiming and one of the spouses is experiencing domestic violence from the other spouse and wishes to keep information about their whereabouts confidential from their spouse.

Furthermore, given the requirement in the rule that the Division consider "any relevant factors", in addition to considering the above factors, including whether allowing the application would likely cause an injustice, the Division should also consider whether refusing the application could be expected to cause an injustice.

Common types of applications to separate and usual practice

Whether to separate the claims of children from their parent when there is a suspicion of abduction

One of the circumstances in which applications to separate arise is from designated representatives assigned to represent children in cases where their accompanying parent is accused of having kidnapped them. While each decision will turn on its own facts, the usual practice is to have the claims remain joined. The rationale for this was articled by RAD Member David Lowe when responding to one such application to disjoin in his reasons in a 2018 case. Similarly, in the leading cases on child abduction and how it intersects with 1F(b) exclusion in the refugee context, the claims of the parent and child have remained joined, as in Kovacs v. Canada, A.B. v. Canada, and Rodriguez v. Canada. However, in Montoya v. Canada the claims of the children were separated from the parent's claim to be heard on another date.

The Board's practice in this respect appears to be consistent with guidance in the UNHCR Handbook that "If the will of the parents cannot be ascertained or if such will is in doubt or in conflict with the will of the child, then the examiner, in cooperation with the experts assisting him, will have to come to a decision as to the well‐foundedness of the minor’s fear on the basis of all the known circumstances, which may call for a liberal application of the benefit of the doubt." This would point towards the claim remaining joined with the parent's so that more information may be admitted and considered when assessing the child's claim.

Whether to separate the claims of family members where one family member has their claim suspended

In some cases, the Minister will act to suspend a refugee claim pursuant to section 103 of the Act: Canadian Refugee Procedure/103-104 - Suspension or Termination of Consideration of Claim. Similarly, under the Practice notice: RPD and RAD processing for individuals applying under government of Canada public policies the Board commits that upon notification by IRCC that a refugee claimant has made an application under one of the listed public policies, the RPD will stop processing that claim pending the outcome of the application. A question can arise about how to proceed with that claimant's remaining family members' claims, provided that their claims are not also suspended. It is common practice for the Board to disjoin the claims and proceed with those claims which are not suspended.

Standard of review for decisions to join or separate claims

Insofar as decisions to join or separate claims affect the fairness of the resultant proceeding, such decisions should be assessed by reviewing bodies such as the RAD and Federal Court for whether they are correct and deference should not be shown to the decision of the Division.