Canadian Refugee Procedure/RPD Rule 22 - Specialized Knowledge

IRPA Sections 170(i) and 171(b)

This section of the Act applicable to the RPD provides that:

170(i) The Refugee Protection Division, in any proceeding before it,...may take notice of any facts that may be judicially noticed, any other generally recognized facts and any information or opinion that is within its specialized knowledge.

Similarly, section 171, applicable to the RAD, reads:

Proceedings
171 In the case of a proceeding of the Refugee Appeal Division, ...

(b) the Division may take notice of any facts that may be judicially noticed and of any other generally recognized facts and any information or opinion that is within its specialized knowledge;

The IRPA provisions for noticing facts are different for refugee proceedings when compared to immigration proceedings at the IRB

Section 170(i) of the Act is the provision that applies to the RPD. There is a similar provision for the RAD, s. 171(b). That said, the IRPA does not have similar provisions for the Immigration Division or the Immigration Appeal Division, as Waldman notes in the text Canadian Immigration and Refugee Law Practice:

Both the Immigration Division and the Immigration Appeal Division of the Immigration and Refugee Board may base their decision only on evidence proven before them during the course of the hearing. These two Divisions of the Immigration and Refugee Board have no power to take notice of facts that form part of their expertise, and they err if they attempt to take notice of facts not before them. This contrasts with the procedure at a hearing held before the Refugee Protection Division of the Immigration and Refugee Board, where, pursuant to s. 170 of IRPA, the Division may take notice of any facts that may be judicially noted, and any other generally recognized facts, information or opinions that are within its specialized knowledge.

IRPA s. 170: The Division may take notice of any facts that may be judicially noticed

Facts that can be “judicially noticed” are facts so notorious or generally accepted as not to be the subject of debate among reasonable persons. Judicial notice concerns facts that are considered to be "common knowledge" or are "generally known, reasonably unquestionable, or easily verifiable." The definition provided by Waldman in Canadian Immigration and Refugee Law Practice is that "judicial notice refers to facts that may be noticed by the court without proof thereof, that are either so notorious as not to be the subject of dispute among reasonable people, or facts that are capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy." Such readily accessible sources may include government and NGO websites, provided that the government or organization has a reputation for credibility. Waldman's text goes on to explain that "notorious facts include local conditions and matters, geographical facts, human behaviour and business trade and practices. For example, the fact that Toronto is situated in Ontario or that the rain makes roads slippery would not have to be proven to the court. In simpler terms, the court may and should notice without proof facts that everybody knows." It is said that the purpose of judicial notice is to dispense with unnecessary proof. As a general matter, the scope of facts that may be noticed by adjudicators is said to include those that would be known to a well-informed member of the community, and this may take context from the nature of the tribunal; for example, when a tribunal consists of members of a profession, notice may be taken of what a well-informed member of the professional group would know. This principle may have implications for the scope of what is properly taken notice of in a refugee proceeding.

Examples of facts that may be judicially noticed:

• University education is generally conducted in the language of the country in which it is located.
• Local conditions (e.g., time of sunset in the summer).
• Geographic facts (e.g., location of Canada-U.S. border).
• The overincarceration of Aboriginal offenders in Canada.
• "Many if not most signatures on Canadian official documents are not legible".
• Judicial notice can be taken of Canadian laws, including all federal and provincial statutes and regulations.
• Judicial notice may be taken of published decisions in Canadian judicial proceedings. However, whether or not there is a wide sentencing range in Canada for the crime of robbery is not something that is appropriately the subject of judicial notice.
• Census information.
• Judicial notice may be taken of international treaties or custom. However, courts “cannot take judicial notice of foreign law”.

The United Nations Office on Drugs and Crime has issued Non-binding Guidelines on the use of Social Media by Judges which states that "Irrespective of whether they use social media or not, judges should have a general knowledge of social media, including how it may generate evidence in cases that judges may decide. Judges should also have an understanding of existing online communication tools and technology, including artificial-intelligence-powered technology."

IRPA s. 170: The Division may take notice of other generally recognized facts

The Federal Court of Appeal has observed that "no tribunal can approach a problem with its collective mind blank and devoid of any of the knowledge of a general nature which has been acquired in common with other members of the general public, through the respective life­times of its members." The statutory ability to take notice of generally recognized facts reflects this truism. The category of "generally recognized facts" is a broader one than the category of facts that may be judicially noticed. As the Board has stated in its legal paper on weighing evidence, and in the Convention Refugee Determination Member's Handbook, the term "generally recognized facts" could include facts which are usually accepted without question by scholars, by government and United Nations officials, and by people who resided in an area, but which are not necessarily commonly known by the general public. It includes information that may be gleaned from an encyclopedia, a country's census, and information in the Board's National Documentation Package. For example, the Federal Court of Appeal upheld a finding that "it is common knowledge that in Poland there are thousands upon thousands of Poles of Ukrainian origin".

It cannot be said that all information in the NDP is of "indisputable accuracy", and hence appropriate for judicial notice, but information in the NDP from reputable sources such as well-regarded human rights groups and academics is nonetheless appropriately accepted by the Board as being "generally recognized". That said, it also should not be said that information from the NDP constitutes specialized knowledge; as illustrated by the court's comments in Pal v. Canada that "the RAD’s comments were grounded in the NDP evidence and surrounding circumstances...not specialized information or knowledge." Similarly, in Morales v. Canada the court commented that the specialized knowledge regime in the Act does not apply to documents that have been adduced into evidence, such as the NDP.

IRPA s. 170: The Division may take notice of information or opinion that is within its specialized knowledge

In contrast to the above categories, specialized knowledge is information that a panel has gleaned from other claims in the manner detailed below, even if it would not be generally recognized. See: Canadian Refugee Procedure/Specialized Knowledge#What is "specialized knowledge"?.

Generally recognized facts are not a type of specialized knowledge

A question can arise about the above typology: per s. 170(i) of the Act, are "generally recognized facts" a category of specialized knowledge or an independent type of fact that the Board may notice? In his text, Waldman notes that:

Section 170(i) also refers to “any other generally recognized facts and any information or opinion that is within [the Division’s] specialized knowledge”. This would give the Division a broad discretion to rely on its knowledge gained from other claims once proper notice had been provided.

This should not be taken as implying that "generally recognized facts" are a subset or type of specialized knowledge. Instead, they are best thought of as an independent type of fact that the Division can recognize, in the same way that facts that may be judicially noticed is also a distinct category. This interpretation of s. 170(i) of the Act is to be preferred for several reasons:

1. The RPD Rule on specialized knowledge, Rule 22, sets out the steps a panel of the Division must take before using any information or opinion that is within its specialized knowledge. The fact that this rule omits any mention of "generally recognized facts" and speaks only of "information or opinion that is within its specialized knowledge" implies that "generally recognized facts" are not a type of specialized knowledge and thereby are not subject to the rules thereon.
2. Furthermore, the courts readily distinguish between "generally recognized facts" and "specialized knowledge". For example, in Aguirre v. Canada, the court's comments indicate that generally recognized facts are distinct from the category of specialized knowledge: "Applicant's counsel says the information given by Mr. Burke was not specialized knowledge within the meaning of subsection 68(4) and I am inclined to agree with her. However, I would think that for purposes of the subsection, Mr. Burke must have thought it was at least a generally recognized fact that it is common to see big cars in Mexico." Ditto the court's comment in Magonza v. Canada, which affirms the distinction between generally recognized facts and specialized knowledge: "the NDP is better viewed as containing generally recognized facts or specialized knowledge." Similarly, when the Federal Court of Appeal considered this provision of the Act in Lawal v. Canada, they punctuated it with an Oxford comma after "generally recognized facts" as follows, implying that there are three separate categories: "facts which may be judicially noticed, generally recognized facts, and information or opinion that is within the board's specialized knowledge".
3. The type of knowledge that has been regarded as a "generally recognized fact" does not meet the criteria to be considered specialized knowledge. The type of knowledge that is considered to be a "generally recognized fact" is something that, for instance, the Board gleaned from an encyclopedia (in Hussain v. Canada), which is distinct from "specialized knowledge" that a panel has learned by virtue of their role as a Member of the Board hearing claims.
4. The construction of s. 170 of the IRPA provides that "the Refugee Protection Division, in any proceeding before it,...may take notice of any facts that may be judicially noticed, any other generally recognized facts...". The use of the word "other" implies that generally recognized facts are more akin to facts that may be judicially noticed (while remaining distinct) as opposed to specialized knowledge.

When must a panel provide notice of "generally recognized facts" before relying upon them?

The previous Immigration Act applied the special notice provisions now enshrined in RPD Rule 22 to generally recognized facts. The relevant provisions of that Act read:

68(4) The Refugee Division may, in any proceedings before it, take notice of any facts that may be judicially noticed and, subject to subsection (5), of any other generally recognized facts and any information or opinion that is within its specialized knowledge.

(5) Before the Refugee Division takes notice of any facts, information or opinion, other than facts that may be judicially noticed, in any proceedings, the Division shall notify the Minister, if present at the proceedings, and the person who is the subject of the proceedings of its intention and afford them a reasonable opportunity to make representations with respect thereto.

As such, it was clear from the construction of the then-section 68(4) of the Act that the Board had to provide notice of generally recognized facts that did not meet the test for being judicially noticed, prior to relying upon them. This provision changed with the advent of the IRPA and now the ordinary procedural fairness concepts regarding notice will apply to a panel's reliance on generally recognized facts, as opposed to this sui generis statutory notice regime.

As a general proposition, a panel should disclose to the parties all information on which the decision-maker intends to rely, allowing them an opportunity to respond, before taking notice of any facts. That said, not every situation where a decision-maker does their own research and fails to disclose it prior to providing their reasons will be considered a breach of procedural fairness. The general approach that applies is that of Mancia v Canada, which holds that while "extrinsic evidence" must be disclosed prior to the decision being rendered, a decision maker is not required to provide notice of their reliance on material that is (1) generally available to the public and (2) not novel and significant information that may affect the disposition of a case. That said, there remains a duty of disclosure where the information to be relied upon is potentially contestable. For more detail, see: Canadian Refugee Procedure/The right to be heard and the right to a fair hearing#Disclosure rights and obligations for the Board.

Whether explicit notice is required where a panel relies upon information in the National Documentation Package will depend on the circumstances of the case. Generally, the NDP is explicitly placed onto the record by reference in a Consolidated List of Documents, which obviates this issue. See RPD Rule 33: Canadian Refugee Procedure/RPD Rules 31-43 - Documents#RPD Rule 33 - Disclosure and use of documents by the Division. In Adefule v. Canada the panel relied upon a section of the NDP for the United States, which was not explicitly on the record. The court concluded that in the circumstances there was no unfairness in relying upon this information, even without having provided prior notice that it would do so:

The information about the asylum process in the USA was not information which the Applicants could not reasonably be expected to have knowledge of. They were represented by counsel at each stage of the proceedings and the RPD had found that the Applicants’ failure to take advantage of the options available to them in the USA undermined their fear of persecution. The RAD was not required to give the Applicants notice that it would be referring to the NDP when it considered that question.

RPD Rule 22

The text of the relevant rule reads:

Specialized Knowledge

Notice to parties

22 Before using any information or opinion that is within its specialized knowledge, the Division must notify the claimant or protected person and, if the Minister is present at the hearing, the Minister, and give them an opportunity to
(a) make representations on the reliability and use of the information or opinion; and
(b) provide evidence in support of their representations.

Comparison to previous version of the Rules

The predecessor to Rule 22 in the previous version of the Rules was Rule 18, which bore a very similar wording to the current Rule 22:

18. Before using any information or opinion that is within its specialized knowledge, the Division must notify the claimant or protected person, and the Minister if the Minister is present at the hearing, and give them a chance to
(a) make representations on the reliability and use of the information or opinion; and
(b) give evidence in support of their representations.

What is "specialized knowledge"?

As the Federal Court held in Adefule v. Canada, specialized knowledge is knowledge accumulated over time as a result of a decision-maker’s adjudicative functions. The Federal Court of Appeal speaks broadly of knowledge that a tribunal member has acquired from time to time in carrying out their statutory duties. In the words of RAD Member Patricia O’Connor, "the very basis of specialized knowledge involves information which would not necessarily be known to the parties in a particular claim, especially when the knowledge is based on information stemming from other cases before [a panel]." There are any number of examples of what constitutes specialized knowledge, e.g.:

• In I.P.P. v. Canada the court accepted the following as being examples of specialized knowledge: the statement that Mexican media gives a great deal of coverage to gangs and their activities and the observation that claimants are often able to present medical reports for treatment obtained in Mexico.
• In Habiboglu v. Canada, the court accepted that the Board had specialized knowledge of the procedures employed by the Canadian Border Security Service to analyse Iraqi documents.
• In Tariq v. Canada, the court accepted that Board findings about the clothing worn by women in Karachi were an example of the panel relying on specialized knowledge.
• In Appau v Canada, the panel's own knowledge of Swiss border points and procedures was held to be specialized knowledge.
• In Saghiri v. Canada, the court held (arguably in obiter) that "Whether the RPD had erred by failing to undertake an analysis under section 98 of IRPA with respect to whether the Applicant is a person referred to in article 1F(b) of the Refugee Convention falls within the RAD’s specialized knowledge of the law applicable to refugee claims" and observed that "Rule 24 of the RAD Rules provides that before using any information or opinion that is within its specialized knowledge, the RAD must give the parties an opportunity to make written submissions."

However, not just any knowledge that a Member has gleaned from other claims may properly count as specialized knowledge:

• The knowledge must be quantifiable and verifiable: Specialized knowledge, to count as such, must be "quantifiable and verifiable". Unverifiable personal knowledge does not qualify as specialized knowledge. The court considered this issue in Cortes v. Canada, where the panel had noted that there have been "refugee protection claimants who have filed complaints with the Mexican authorities without necessarily being injured or on their deathbed." The court commented as follows: "In my opinion, the 'specialized knowledge' relied on in this case was mischaracterized. Here, the decision maker drew on the specialized and general knowledge it had acquired over the years to point out to the applicant that this was the first time it had heard such an argument and that its professional knowledge and experience in cases from Mexico demonstrated the contrary. The 'knowledge' relied on in this case was neither quantifiable nor verifiable, which meant that Rule 18 did not apply." Similarly, the Federal Court of Appeal stated that "it is not only normal but inevitable that in performing their role, panel members will be influenced by the experience they may have acquired in the exercise of their duties. On the other hand, as long as the members rely only on their experience and not on specific information, [the specialized knowledge provisions do] not apply."
• The knowledge cannot be based on stereotypes: As the court stated in Vodics v. Canada, "the use of specialized knowledge in the decision-making process, which is, in fact, the use of acquired personal knowledge on the part of the decision-maker, is acceptable, but with a very important limit when it comes to the use of stereotypes." The court in that case goes on to note that a "stereotype" is a preconceived, standardized, and oversimplified impression of the characteristics which typify a person or situation. The danger in applying a stereotype is that the person who is the exception to the oversimplified impression is not protected from the erroneous application of the impression. The court concludes that a number of the panel's findings in that case were made in error because the specialized knowledge was incomplete and based on stereotypes, for example:

  The CRDD makes the finding that the Applicant's mother's maiden name is not typically Romany, and draws on its specialized knowledge to do so. Therefore, this finding is significant in that it can be taken to be some evidence used to rebut the Applicant's sworn evidence that he is a Roma. However, in my opinion, before the finding can be considered evidence to be used in this way, the CRDD must be satisfied that its specialized knowledge is complete. The CRDD admits that it has specialized knowledge of "some specific Roma names", and, accordingly, I find it is reasonable to conclude that it does not have specific knowledge of all Romany names, if such a task is even possible to reach. The CRDD's statement that the Applicant's mother's maiden name is not typically Romany, is not relevant to the determination of the Applicant's ethnicity. It is conjecture used as evidence. As such, the CRDD should not have used it in forming its negative credibility finding.

• Specialized knowledge should be distinguished from facts that may be judicially noticed and generally recognized facts: There are three types of facts that the Refugee Division may take notice of. They are properly distinguished from each other. See further: Canadian Refugee Procedure/RPD Rule 22 - Specialized Knowledge#Generally recognized facts are not a type of specialized knowledge.

The Member must provide sufficient information so that the specialized knowledge can be tested by the parties

Rule 22 provides that before using any information or opinion that is within its specialized knowledge, the Division must notify the parties and give them a chance to make representations and give evidence in response. This is a requirement of the rules, and procedural fairness, and the courts have held that the effect of Rule 22 is to "codify the common law which requires that parties be notified where information not already on the record may be relied on." Where a Member has relevant knowledge from a related file, there is a presumption that Members reach their decisions by relying solely on the evidence before them in the record and that they are able to ignore any other evidence from other files. Rule 22 provides that the Division must notify the parties (technically the Minister need only be notified if they are present at the hearing, not if they are only intervening in writing) and give them an opportunity to make representations on the reliability and use of the information or opinion. Mr. Justice Campbell commented on what a panel must do so that a party may be said to have had a meaningful opportunity to make representations on the reliability and use of the knowledge in Isakova v Canada: "in order for [the Rule] to be effective, the RPD member who declares specialized knowledge must place on the record sufficient detail of the knowledge so as to allow it to be tested. That is, the knowledge must be quantifiable and verifiable." The legal requirement that specialized knowledge be "quantifiable and verifiable" is thus an aspect of procedural fairness in that the purpose of the notice requirement enshrined in Rule 22 is that a party be able to make meaningful representations on the reliability and use of the information or opinion and this right would be rendered meaningless if the information offered were insufficiently specific for a party to be able to do so.

It is not essential for a party to be informed, prior to the hearing, that the panel will rely on information within its specialized knowledge. What is important is that the claimant be given the opportunity an opportunity to make representations about the specialized knowledge.

Does the Member need to specifically use the words "specialized knowledge" or refer to this rule by number prior to relying on specialized knowledge?

Arguably not, as the purpose of the Rule is satisfied where a claimant has notice of the specialized knowledge being relied upon, and an adequate opportunity to reply, regardless of whether or not the particular words "specialized knowledge" are uttered by the panel member. The principle enshrined in Rule 22 is that prior to relying on any specialized knowledge, a panel of the Board must "advise the claimant of the actual information it will be relying on and give the claimant an opportunity to challenge the evidence."

Member Jolyane Lefebvre of the Refugee Appeal Division considered this issue in a 2019 decision. It involved a case where the RPD found that the answers provided by the male appellant concerning why the appellants had failed to seek asylum in Chile or the United States diminished and undermined their credibility. The RPD was of the opinion that it was reasonable to expect that the appellants would have obtained information on these options, considering their statements that they feared returning to their country. The principal appellant testified that he did not have the right to apply for asylum in the United States because of his “parole” status. The Member stated during the hearing that “that there are several types of parole.” The RAD Member held in the reasons that "I am of the opinion that the member misspoke and should have told the appellants that his specialized knowledge led him to determine that there are several types of 'parole.' As Rule 22 of the Refugee Protection Division Rules sets out, the member must notify the parties and give them an opportunity to make representations or provide evidence in support of their representations at the time of the hearing. I would agree that this was not done because the member failed to specifically mention that he had specialized knowledge in this area."

Does specialized knowledge only arise from a Member's personal hearings or is what a Member learns of their colleague's hearings also properly considered specialized knowledge?

Specialized knowledge is information that a panel has gleaned in its role as a Member of the Board. It need not arise from hearings that the Member in question presided over personally. Thus, for example, the Federal Court has held that the Board may take notice of an expert opinion in a "lead case" and consider it in a subsequent case, as an exercise of its authority to take notice of information and opinions within its specialized knowledge, provided it gives proper notice. Relatedly, where a Member has knowledge of similar claims, details of such knowledge are part of their specialized knowledge, and that knowledge may be placed on the record provided that the notice requirements set out in the Division's Rules are followed. Additionally, specialized knowledge need not arise from a hearing at all: the Board states in the legal services paper on its website that "specialized knowledge" may arise from a panel's knowledge of documents in the Board's Documentation Centre, for example. In her article The Use of Official Notice in a Refugee Determination Process, France Houle argues that specialized knowledge can consist of decisions that a Member has read, regardless of whether they participated in the decision or not: "It is important to emphasize that it is only the decisions in which a Member participated, read or became aware of as a result of training sessions which form part of the specialized knowledge of that Member and not all the decisions rendered by all CRDD Members across the country and contained in the [database of refugee decisions]."