Date: 20041006
Docket: IMM-6640-03
Citation: 2004 FC 1368
Ottawa, Ontario, October 6, 2004
Present: The Honourable Madam Justice Mactavish
BETWEEN:
BLESSING OSAGIE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] As a result of a series of errors on the part of her counsel, Blessing Osagie's refugee claim was declared to have been abandoned. Her motion to have her claim re-opened was then dismissed by the Immigration and Refugee Board. She now seeks judicial review of the Board's refusal to re-open her refugee claim.
[2] Ms. Osagie was represented at the hearing of her application for judicial review by the same counsel who represented her before the Board. Counsel initially advanced two arguments as to why the Board's decision should be set aside: first, that inadequate notice had been provided with respect to the scheduling of the abandonment hearing, which amounted to a breach of natural justice, and second, that the Board erred in failing to consider Ms. Osagie's request to have her abandonment hearing adjourned.
[3] At the hearing of this application, and as a result of questions from the Court, Ms. Osagie added a third argument: that inadvertence on the part of her counsel resulted in her being denied natural justice in connection with her motion to re-open her refugee claim.
Chronology of Events
[4] Ms. Osagie is a citizen of Nigeria, who arrived in Canada on March 15, 2003. She made a claim for refugee protection shortly thereafter. Ms. Osagie retained the services of Kingsley Jesuorobo, an immigration lawyer, to assist her in making her claim.
[5] Ms. Osagie received her Personal Information Form ("PIF") from the Board on April 2, which meant that the deadline for filing the completed form was April 30, 2003. On the morning of April 30, Ms. Osagie met with Mr. Jesuorobo in order to complete the form. Ms. Osagie's completed PIF was then given to an employee in Mr. Jesuorobo's office with instructions to file the form with the Board that day. According to an affidavit filed by the employee, through inadvertence on the part of the employee, Ms. Osagie's PIF was not filed with the Board until May 2, 2003. Ms. Osagie deposes that Mr. Jesuorobo did not notice the error at the time.
[6] Because it had not received Ms. Osagie's PIF within the stipulated 28-day period, a Notice to Appear for Abandonment of a Claim for Refugee Protection was sent by the Board to both Ms. Osagie and Mr. Jesuorobo, by ordinary mail, on May 9, 2003. The notice advised that since Ms. Osagie's PIF had not been filed within the 28-day time period, an abandonment hearing would be held on Monday, June 9, 2003. Because Mr. Jesuorobo had inadvertently given the Board his office address as Ms. Osagie's personal address on the PIF form, both notices were sent to Mr. Jesuorobo's office.
[7] In the affidavit filed by Ms. Osagie in support of her application for judicial review, Ms. Osagie deposes, based upon information from Mr. Jesuorobo, that neither notice of the abandonment hearing arrived in counsel's office until Friday, June 6. Ms. Osagie also deposes that Mr. Jesuorobo was informed late in the day on June 6 by the Federal Court that an urgent stay motion for another client was scheduled to be heard at 9:00 a.m. on June 9, that is, at the same time as her abandonment hearing. As a result, Ms. Osagie says, at approximately 8:20 a.m. on June 9, forty minutes before the abandonment hearing was to commence, Mr. Jesuorobo faxed a request to the Board that the matter be adjourned until 12:30 p.m. that same day. Mr. Jesuorobo also left a telephone message for an Abandonment Proceedings Clerk.
[8] Ms. Osagie further deposes, based once again upon information and belief, that Mr. Jesuorobo went to the Immigration and Refugee Board at approximately 12:30 p.m. on June 9, only to discover that his message had not been retrieved, and that Ms. Osagie's refugee claim had been declared abandoned.
[9] On July 4, Mr. Jesuorobo applied to have Ms. Osagie's claim for refugee protection re-opened. This application was supported by an affidavit sworn by Ms. Osagie on July 3, 2003. There is nothing in the record to suggest that Ms. Osagie was aware of what had transpired with respect to her refugee claim prior to that date.
The Board's Decision
[10] On August 12, 2003, the Board denied Ms. Osagie's request to re-open the claim. The Board noted that two separate notices had been sent to the address noted on Ms. Osagie's PIF. The Board was not persuaded that neither notice was received by Mr. Jesuorobo's office before June 6. The Board further noted that even if Mr. Jesuorobo only received the notice on Friday, June 6, he had sufficient time to make other arrangements before the hearing scheduled for the following Monday. As a result, the presiding member was not persuaded that there had been a breach of natural justice, and the application to re-open the hearing was accordingly dismissed.
The Test on an Application to Re-open a Refugee Claim
[11] The test upon a motion to re-open a claim for refugee protection that has been terminated following an abandonment hearing is set out in section 55(4) of the Refugee Protection Division Rules, which states:
| 55 (4) The Division must allow the application if it is established that there was a failure to observe a principle of natural justice. |
55 (4) La Section accueille la demande sur preuve du manquement à un principe de justice naturelle.
|
Was Adequate Notice Provided with Respect totheAbandonment Hearing?
[12] Mr. Jesuorobo submits that the Board failed to provide Ms. Osagie with sufficient notice with respect to the scheduling of the abandonment hearing, and that this amounted to a breach of natural justice. There is a rebuttable presumption that a document that is served by ordinary mail will be received within seven days after mailing. In this case, Mr. Jesuorobo says, that presumption has been rebutted, and the Board should have accepted that notice of the abandonment hearing was only received on June 6, 2003.
[13] I do not accept this submission. The Board was entitled to weigh the evidence before it on this point. It seems most unusual that neither notice would have reached its destination for some four weeks. Further, the only evidence before the Board on this point came from Ms. Osagie and not Mr. Jesuorobo himself, or from anyone else in his office with direct knowledge of when the notices were received. In these circumstances, I see no basis for interfering with the Board's decision on this point.
Did the Board Err in Failing to Consider the Request to Have the Abandonment Hearing Adjourned?
[14] Mr. Jesuorobo submits that the Board's finding that he had sufficient time to make other arrangements before Ms. Osagie's abandonment hearing is "ridiculous". In his oral submissions, Mr. Jesuorobo stated that while the notice was received in his office on Friday, June 6, he himself was not made aware of the hearing until early on the morning on Monday, June 9. The problem with this submission is that there is no evidence before the Court to support it.
[15] Mr. Jesuorobo further submits that even if one proceeds on the basis that his office had notice of the abandonment hearing on June 6, 2003, given that there was a weekend intervening, it was ridiculous to think that he could have made other arrangements before the following Monday morning. Once again, the Board was entitled to weigh the explanation provided for the failure to appear for the abandonment hearing, and I see no basis to interfere with the Board's finding that alternate arrangements could have been made. At the very least, Mr. Jesuorobo could have arranged for Ms. Osagie herself to attend at the abandonment hearing, to have her ask that the matter be adjourned in light of the unavailability of her counsel.
Did the Errors on the Part of Mr. Jesuorobo and His Office Result in Ms. Osagie Being Denied Natural Justice?
[16] Although the issue was not initially raised by Mr. Jesuorobo, at the hearing of this matter I inquired as to whether Ms. Osagie may have been denied natural justice in relation to her abandonment hearing as a result of the conduct of her counsel. Both parties were then afforded the opportunity to make further submissions, in writing, on this point.
[17] Having now had the opportunity to consider those additional submissions, I am of the view that this application must succeed. While the law is not always uniform in its application, it is clear that the negligent or incompetent actions of a solicitor may result in a party being denied a fair hearing: Shirwa v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 51, Gulishvili v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1667.
[18] In particular, this Court has held that negligence on the part of counsel may result a breach of natural justice sufficient to require the re-opening of an abandoned refugee claim: Taher v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. 1327. See also Masood v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1480.
[19] The respondent submits that counsel's conduct should not generally be separated from that of the client. Counsel is acting as an agent for the client, and the client must bear the consequences of hiring poor counsel: Jouzichin v. Minister of Citizenship and Immigration, [1994] F.C.J. No. 1886 and Huynh v. Minister of Employment and Immigration (1993), 65 F.T.R. 11.
[20] The respondent also relies on the decision of the Federal Court of Appeal in Gogol v. Canada, [1999] F.C.J. No. 2021, where the Court held that there must be extraordinary incompetence on the part of counsel to result in a breach of natural justice.
[21] There is information contained in the affidavit sworn by Ms. Osagie in connection with this application that was not before the Board on the application to re-open. According to the respondent, this information should not be used as a basis to overturn what was a correct decision based upon the information that was available at the time that the decision was made.
[22] I agree with the respondent that there are problems with the materials filed in this matter. In addition to the concern identified by the respondent, I am also concerned that much of the evidence contained in the affidavits sworn by Ms. Osagie, both in connection with the application to re-open her refugee claim and in relation to this application for judicial review, is based on information received by Ms. Osagie from Mr. Jesuorobo. This puts Mr. Jesuorobo in the position of arguing, at least indirectly, on the basis of his own evidence. As has been repeatedly noted by this Court, such conduct is contrary to the spirit of Rule 82 of the Federal Court Rules: See, for example, Reading & Bates Constr. Co. v. Baker Energy Resources Corp. (1986), 7 F.T.R. 117 and Anwar v. Minister of Citizenship and Immigration, [2004] F.C.J. No. 1441.
[23] In the circumstances of this case, it would have been more appropriate for Mr. Jesuorobo himself to have sworn an affidavit in support of this application, and for a different counsel to have appeared at the hearing. This would also have avoided there being any potential for conflict between the interests of counsel and client.
[24] That said, Ms. Osagie has provided direct evidence as to her state of awareness regarding the progress of her refugee claim. Her evidence as to what she was aware of and when she was aware of it is uncontroverted. Ms. Osagie has also provided first-hand information as to her intentions regarding her refugee claim. In this regard, the uncontradicted evidence before the Board on the motion to re-open was that Ms. Osagie completed her PIF within the specified time period, and was led by her counsel to believe that the form would be filed with the Immigration and Refugee Boardwithin the requisite 28-day period. Through no fault on the part of Ms. Osagie, this was not done, nor was she ever made aware of the fact that it was not done.
[25] Because of a further error on the part of her counsel, the notice of the abandonment hearing was not sent to Ms. Osagie's home, but instead was sent to Mr. Jesuorobo's office.
[26] Regardless of when the notice of the abandonment hearing was actually received by Mr. Jesuorobo's office, or when Mr. Jesuorobo himself became aware of the date set for the hearing, the evidence before the Board was clear: Ms. Osagie was never made aware that a date had been set for an abandonment hearing in relation to her refugee claim, and thus had no opportunity to appear and be heard. Equally evident from the material before the Board was that Ms. Osagie always had the ongoing intention to pursue her refugee claim.
[27] In these circumstances, I am satisfied that the effect of the various errors committed by Mr. Jesuorobo and his employeeswas to deny Ms. Osagie natural justice in relation to her abandonment hearing. In these circumstances, and having regard to the mandatory language of Rule 55(4) of the Refugee Protection Division Rules, Ms. Osagie's request to re-open her claim should have been granted. As a result, the decision of the Board on the application to re-open must be set aside.
Certification
[28] Neither party has suggested a question for certification, and none arises here.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is allowed, and the matter is remitted to a differently constituted panel for redetermination in accordance with these reasons.
2. No serious questionof general importance is certified.
"Anne L. Mactavish"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-6640-03
STYLE OF CAUSE: BLESSING OSAGIE
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: August 25, 2004
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR ORDER
AND ORDER BY: Honourable Madam Justice Mactavish
DATED: October 6, 2004
APPEARANCES BY: Kingsley Jesuorobo
(416) 398-8647
For the Applicant
Marcel Larouche
(416) 952-7262
For the Respondent
SOLICITORS OF RECORD:
Kingsley I. Jesuorobo
1280 Finch Ave., West
Suite 318
North York, Ontario.
M3J 3K6
For the Applicant
Marcel Larouche
DEPARTMENT OF JUSTICE
130 King Street West
Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
For the Respondent