July 1, 2020
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QUESTION: “How important, or not important, is the submission by counsel in an IAD hearing? Do they influence the decision maker? Are they read and remembered? (Sponsorship appeals.) Or does it often depend on the record, testimonies, witnesses etc? Any tips in general on IAD hearings? Thank you.”
ANSWER: To answer your question in brief, submissions by counsel at IAD hearings – whether it be sponsorship appeals, removal order appeals, or residency obligation appeals – are extremely important. Where submissions are made by counsel on a particular point that is at issue in the hearing, the Member has an obligation to consider those submissions. The Member’s duty in this regard stems from the principles of procedural fairness and natural justice, which ensure that the hearing process is fair to the Appellant. Therefore, if counsel makes submissions on a particular relevant issue, and the Member fails to at least consider those submissions, this is grounds to set the decision aside on Judicial Review.
That being said, whether or not the Member assigns considerable weight to counsel’s submissions is an entirely different question. This will depend on the strength of the submissions, and how well they connect the specific facts and evidence of the case to the legal issues at play in the hearing. In making submissions, counsel should consider the following questions:
(1) What are the legal issues at play in the hearing?
In the spousal sponsorship appeal context, for example, the relevant issues might include:
i. Was the marriage between the Sponsor and Applicant “genuine”?
ii. Does the relationship between the Sponsor and Applicant qualify as “common law”?
iii. Was the Applicant or Sponsor legally divorced from a prior spouse prior to sponsorship application being made?
(2) What does the existing law (e.g. IRPA, IRPR, case law) and policy (e.g. OB’s, Ministerial Instructions…etc.) say about the relevant legal issues at play in the hearing?
In the spousal sponsorship appeal context, for example, the relevant law and policy might include:
i. Whether marriage is “Genuine” IRPR s. 4(1), Koffi v. Canada (MCI) 2014 FC 7, Singh v. Canada (MCI) 2014 FC 1077, Chavez v. Canada (MCI) [2005] I.A.D.D. No. 353, ENF-19 IAD Appeal Hearings…etc.
ii. Whether relationship is “Common Law” IRPR ss. 1(1), 117, 123-125 of IRPR, Molodowich v. Penttinen [1980] O.J. No. 1904, ENF-19 IAD Appeal Hearings…etc.
iii. Whether a legal divorce was effective IRPR s. 117, Federal Divorce Act, OP 2 – Processing Members of the Family Class…etc.
(3) What evidence is there to corroborate the relevant facts?
In the spousal sponsorship appeal context, for example, the relevant evidence might include:
i. Whether marriage is “Genuine” à Marriage certificate, wedding invitations/photos, joint ownership of property, joint utilities, proof of communication, affidavits from friends & family attesting to marriage genuineness…etc.
ii. Whether relationship is “Common Law” à Photos showing conjugal relationship, employment/insurance benefits recognizing common law relationship, evidence of financial support (e.g. joint bank accounts, money transfers), evidence of shared expenses, affidavits from friends & family attesting to Molodwich factors…etc.
iii. Whether a legal divorce was effective à Divorce certificate, Court Order for divorce, foreign divorce opinion letter…etc.
(4) How do the facts (as established by the evidence) show that the relevant legal criteria are met?
- This is the “heart” of the submission, and involves connecting the specific facts of the case (as established by the evidence) to the legal issues at play
- Where case law is involved, counsel must establish factually relevant similarities between the precedents being used and the case at bar
- Finally, in terms of general tips for submissions at IAD hearings (and IRB hearings more generally), there are a few that I would recommend:
- Before making closing submissions, it is always a good idea to seek clarification from the Member as to what the remaining issues are. This allows counsel to appropriately hone in on what points need to be addressed in closing. Furthermore, where a Member directs counsel to make submissions on only certain issues, the Member cannot then find against the Appellant on the basis of other issues outside of his or her initial direction. To do so, constitutes a violation of the principles of natural justice (see: Velauthar v. Canada (MEI) [1992] F.C.J. No. 425; Okwagbe v. Canada (MCI) 2012 FC 793).
- When making submissions, remember to keep in mind the distinction between “evidence” and “submissions.” Submissions are not evidence. Rather, they are a set of arguments or assertions about how the facts (as supported by the evidence) address the relevant legal issues, or satisfy the relevant legal criteria. As such, any facts that counsel intends to rely upon in his or her submissions must be independently corroborated by evidence. Where counsel fails to procure said evidence, the Member is entitled to give little weight to the submissions (see: Ferguson v Canada (MCI) 2008 F.C.J. 1308).
- When making submissions, remember to be concise. Counsel should tailor his or her submissions to address only what the legal issues are. Submissions that are verbose, and go beyond the strict legal issues, risk distracting the Member from what he or she should be focussing on.[1]
[1] I would like to give credit to Lorne Waldman, founding partner Waldman & Associates in Toronto, Ontario, for his seminar entitled, “Advocacy – thinking ahead, protecting your client’s interests.” Lorne’s seminar was offered through the IMEDA platform, and has helped inform the writing of this piece.