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A Practical Guide to ADR before the Immigration Appeal Division for Appellant's Counsel These materials were prepared by Andrew Z. Wlodyka of Lowe & Company, Vancouver, B.C. for the Continuing Legal Education Seminar organized by the Canadian Bar Association, Immigration Section, May 2-3, 2003 , Mont-Royal Centre-4 th Floor, 2200 rue Mansfield , Montreal , Quebec . This paper is written to assist counsel to better represent their clients in the Alternative Dispute Resolution Program (ADR) instituted by the Immigration Appeal Division, Immigration and Refugee Board in July, 1998, first as a pilot project in Toronto and subsequently expanded to Vancouver and Montreal . I will not seek to cover the same ground as Robert Neron. Mr. Neron has prepared a paper for this conference that describes in general, the Bilingual ADR program of the Immigration Appeal Division. I INTRODUCTION The Immigration Appeal Division has displayed a significant commitment to the ADR program since its implementation in July 1998. Its rules have included a component that deals with ADR. Leslie Macleod conducted a comprehensive review of the Program. Ms. Macleod's final report was delivered to the Immigration and Refugee Board in March 2002. Ms. Macleod found that “since its inception in 1998, the IAD's ADR program has demonstrated that it contributes significantly to the efficiency, effectiveness and quality of administration of justice at the IAD. The study found that approximately 52% of the cases in the ADR process resolved without requiring a hearing, with a total of 65%, if pre-ADR resolution was also included. The ADR session on average took less than an hour as compared to 2.4 hours ( Toronto ) and 3.3 hours ( Vancouver ) for non-ADR cases that went to a hearing. The Dispute Resolution Officer was therefore able to resolve more cases through the ADR process than through a hearing. Similarly, the Minister's representative did not need to spend as much time to prepare for an ADR session as a regular hearing. Sponsorship appeals accounted for most of the caseload that has gone through ADR. The majority of cases have involved relationships such a marriage and fiancé cases. Since the implementation of IRPA, it is anticipated that marriage, common-law or conjugal partner cases will form the majority of cases in ADR. The rest of the cases have been financial, criminality and medical appeal cases that have focuses on the IAD's equitable jurisdiction. Adoption cases have been excluded from the ADR process because very few were successfully resolved. The study by Ms. Macleod found that those cases that did not settle at the ADR, the hearings took longer to process to conclusion. The explanation for this was that the Appellants were able to mount a more focused presentation Given the above result, the IAD has found the program to be an indispensable tool to help it manage its work load. The principal actors in the ADR process are the Dispute Resolution Officer (DRO), who is a Board Member, the Minister's Representative and the Appellant and his or her counsel. The DRO is responsible for the conduct of the ADR session and occupies a neutral role. The Minister's counsel is the key actor in the ADR process. A successful outcome from the Appellant's perspective requires the Minister's counsel to be comfortable with the merits of the Appellant's case before a positive recommendation will be made. The Appellant and his or counsel are the other important actors in the process. For the most part, counsel who participated in the ADR program have found that it expedited the appeal process and often saved their clients money. The ADR program also allowed counsel have a better idea about the strengths and weaknesses of their cases. Their clients preferred the ADR process because it was informal. The ADR program is here to stay and it is important for counsel to be well equipped to participate in the process. II THE ROLE OF APPELLANT'S COUNSEL'S IN THE ADR PROCESS (a) Selection of case for ADR In the normal scheme of things, the Assistant Deputy Chair of the Region or the Coordinating Member selects an appeal case for ADR. Factors that go into selection include the type of case, whether credibility is in issue, whether the case is complex or straightforward. The process of selection is not based on any transparent criteria. The selection criteria have been subject to criticism by Ms. Macleod in her report because of its lack of transparency. Counsel for the Appellant can play a vital role in assisting in the selection process. Usually, counsel will make the recommendation after the Hearings and Appeals Unit have prepared the Appeal Record. A case should not be recommended for ADR by counsel unless he or she is of the opinion that the case lends itself to the process. A case should have a few key issues. Where the issues are complex, the case should best be left for a hearing. A case where the Applicant has serious credibility problems should also be left for the hearing as the Applicant does not participate directly in the ADR process. Medical, financial and criminality cases where there are strong humanitarian and compassionate factors lend themselves very well to the ADR process. Counsel should make their own evaluation of whether their case is suitable for ADR and not depend on whether the case is selected by the Assistant Deputy Chair. (b) Disclosure Once counsel is contacted by the DRO and advised that the case is selected for ADR, it is important for counsel to prepare a Summary of Issues and Documents and prepare a copy for the DRO and the Minister's representative at least ten days before the ADR session. It is essential that some thought be given to the summary of Issues and Documents. Full disclosure should be done by the Appellant's counsel in a timely manner. Late filing will only cause delay and likely postponement of the ADR session. Minister's counsel must do at least 3 cases per day. Given the limited time that they have available for the individual case, nothing causes greater upset than for disclosure to be late. The atmosphere for the session is potentially poisoned by lack of timely disclosure where there is no postponement. In the Summary of Issues and Documents, Appellant's counsel should set out the issues to be resolved, the facts that the Appellant will be relying upon and the documents that support the Appellant's position. The Documents should be prepared in accordance with the format outlined in Rule 28 of the IAD Rules. They should be placed in a Bound Brief of Documents that has an index and is tabbed with each page numbered for easy reference. Translations of documents should be accompanied with a translator's declaration that is done in accordance with Rule 29(3). A detailed factual outline will assist counsel in preparation of the client for the ADR. It will also assist the parties to the ADR in the preparation of the Summary of Agreement where the matter is resolved satisfactorily. An interpreter should be requested for the ADR in the letter to the DRO including the Summary of Issues and Documents. While Minster's counsel is requested to prepare their own Summary of Issues and Documents, this is rarely done. (c) Preparation of client It is important to remember that it is the client who does most of the talking at the ADR and not counsel. Therefore, preparation of the client by the Appellant's counsel is critical. The role of the Appellant's counsel is to assist the Appellant to bring forward information that would be helpful in persuading the Minister's representative to recommend that the appeal be allowed. The Minister's representative must be given sufficient information that he or she is comfortable in making a positive recommendation in a case. In order for this be done, the Appellant's documents must be properly marshaled to support his case and disclosed to the DRO and the Minister's representative in a timely manner. Lack of timely disclosure will only serve to alienate Minister's counsel and therefore make the ADR session less productive. The Appellant must be properly prepared to deal with the relevant issues raised by the Visa Officer in the refusal if the matter is a question of law. The Appellant must also be prepared by his or her counsel to provide sufficient information to persuade the Minster's representative that discretionary relief is appropriate in the circumstances of the case. The Appellant should be prepared by his or her counsel to discuss his or her relationship with the Applicant and describe how it developed. He should be aware of the reasons why the application was refused. It is counsel's role to explain in detail all the concerns raised by the visa officer. If there is a question about whether humanitarian and compassionate considerations exist, the Appellant should be able to explain why it is important that his or her relative be allowed to come to Canada . It is important that questions asked by the DRO or Minister's counsel be answered so that the concerns of the Minister's counsel are addressed. The common view of most counsel who participated in the evaluation of the ADR process is that counsel should prepare their clients as if they were going into a hearing. It is important in the preparation process that the Appellant understand the rules of confidentiality in the process before he or she begins the session. He or she should not have to just rely on the explanation about confidentiality provided by the DRO. Counsel for the Appellant should have already briefed the Appellant about eh following: • What is said in the ADR process by either party cannot be used at the subsequent hearing; • However, information that can be independently proved can be used by either party; • Information that relates to an offence under Canadian Immigration Legislation or breach of Immigration Appeal Division Rules can be used; • Information can be used if there is consent of the parties. The Appellant must be able to tell his or her story so that the Minister's representative is confident about the accuracy of the facts, there is a minimum of qualified information and there are not too many instances when the Appellant simply does not know the answer to the questions posed by the Minster's representative. If the bona fides of a relationship are at issue, the Appellant must exhibit solid knowledge about the Applicant from the beginning of the relationship. The Appellant should be encouraged to keep a diary of the relationship that goes back as far as possible. It is important for the Appellant to have discussed with the Applicant what happened at the interview with the Visa Officer to be able to provide explanations about the Visa Officer's concerns. It is therefore critical for counsel to go over the Appeal Record with both the Appellant and the Applicant. Role-play between counsel and the Appellant should be encouraged to allow the Appellant to develop confidence in discussing the issues in a conversational style. (d) ADR Hearing At the hearing, the DRO welcomes the parties and introduces them. Ground rules to govern the mediation are set out such as one person speaking at a time. The DRO may invite opening statement highlighting its concerns, interests and positions. The Appellant should set out his or position in a summary way and not his or her counsel. Minister's counsel may also set out his or her position. The DRO may summarize the issues and suggest ways to deal with them. Normally, the opening part of the mediation is short as time is at a premium. The substance of the mediation is the conversation between the Appellant and Minister's representative. It is up to the Appellant to lay the factual foundation for his or her case. It is important for Appellant's counsel not to try to take over the process. The Appellant's counsel should allow the Appellant to answer the questions put by Minister's counsel. There should be spontaneity during the dialogue between the Appellant and Minister's counsel even where statements by the Appellant may seem against interest. If necessary, clarification can be obtained through the DRO or the Appellant's counsel in due course but an uninterrupted narrative statement by the Appellant should be encouraged. An additional benefit of counsel allowing the Appellant to participate in the process is that it will be the first time that the Appellant will have an opportunity to speak to someone in authority about their problem. The Appellant may feel some frustration in the process and active participation will allow him or her to vent his or her feelings. While the dialogue may seem uncontrolled and uncomfortable, the Appellant has a golden opportunity to project his or her sincerity about his or her appeal. If there are documents that need to be produced to corroborate the Appellant's point, his or her counsel can make these available for review by Minister's counsel. Counsel should actively listen to what is being said by the parties. He or she should take detailed notes of what is said by all parties including the DRO. This will help counsel deal with any shortcomings in the case. Counsel should be prepared to assess whether the Appellant should seek an evaluation of the case from the DRO. Such an evaluation should only be sought if there is a reasonable likelihood of a positive comment from the DRO. Appellant's counsel should resist any attempt to be aggressive or argumentative because such behaviour invariably will poison the atmosphere of the ADR session and prevent any chance of an agreement on terms favourable to the Appellant. It must be remembered that counsel may be required to work with the same Minister's representative on different cases. A good working relationship is therefore essential for success over the long term. The behaviour of Appellant's counsel toward the other parties in the process should be courteous and respectful. Such behaviour more than anything else shows that the Counsel trusts the process and this will put the Appellant at greater ease. Open lines of communication should always be maintained among the parties. Generally, Appellant's counsel and their clients do not caucus all that frequently with the DRO except to obtain an opinion about the merits of the case, to obtain information about the concerns raised by the Minister's counsel or as a way to relief tension where emotions are high. It is generally not beneficial to caucus too often. It is much better for the Appellant to interact with Minister's counsel. Usually, the DRO caucuses with the Minister's counsel first. Appellant's counsel should look at the ADR session as an opportunity for the Appellant to practice giving evidence. It is likely that the Appellant will be better prepared for the hearing even if the ADR fails to achieve resolution. The ADR session also gives the Counsel an opportunity to evaluate the case, see whether there are any evidentiary issues and develop a strategy at the hearing working together with the Appellant. (e) Summary of Agreement If there is a resolution of the case, a Summary of Agreement is completed that sets out the basis of the agreement to recommend that the appeal be allowed. Counsel for the Appellant can play a useful role in the drafting of the Summary of Agreement. The main purpose of the Summary of Agreement is to give transparency to the ADR process, make sure that the public interest is served and provide the visa post with the rationale for the decision to allow the appeal. It is important for Appellant's counsel to make sure that the Summary of Agreement provides sufficient detail for the rationale of the decision that the Board Member who reviews the Agreement will ratify the result and allow the appeal. The Board Member who reviews the Agreement is not the DRO during the ADR session. Usually, if the purpose of the Summary of Agreement were to provide a rationale for the decision to the Visa Post, it would be useful to work closely with Minister's counsel in drafting the Summary of Agreement. In the case of discretionary relief, the DRO may play a more significant role as this jurisdiction belongs to the IAD. (f) Opting-Out Where the case is not part of the mandatory ADR program, counsel for the Appellant may consider whether to opt out of the ADR process if the case is selected because it may not be suitable. Consent of the Minister's Representative should be sought. Opting-out should be infrequent and should only occur where a serious legal, constitutional or Charter challenge is contemplated. The issue may be a novel one that should be heard to develop an important precedent. There may be public interest issues at stake that preclude participation in the ADR. The Appellant may not be able to participate in the ADR process and efforts at resolution may have already occurred before the ADR. (g) Getting the case to a full hearing IF the ADR session does not work to resolve the case, it is important for counsel for the Appellant to make sure that the case is scheduled for hearing as quickly as possible. A common criticism of the present ADR process is the length of time that it takes to schedule cases that have not been successful at ADR. It is important for counsel for the Appellant to be proactive with the DRO to make sure that the case is referred to the Scheduling Unit of the IAD as quickly as possible for scheduling for the hearing. Failure to do so will force counsel to spent extra additional time in renewed preparation of Appellant for hearing. III Conclusion The ADR process if approached with an open mind by all parties can lead to a positive experience for the Appellant. There is a reasonable possibility that the case may be resolved without a full hearing and thus save the client money. The process is also less stressful for the Appellant. Even if unsuccessful, it may have the effect of narrowing issues and providing an opportunity for the Appellant and his or her counsel to develop strategies to deal with the issues at a hearing. The Appellant's counsel must realize the importance of the Minister's representative to the process. Therefore, matter of timely disclosure of documents and courteous behaviour toward the Minister's representative by Appellant's counsel will aid in assisting in the resolution of disputes. Preparation of the Appellant is the key to success at the ADR. Preparation will lead to a better outcome than lack of preparation. The Appellant's counsel should be vigilant for those cases that do not lend themselves to ADR and seek to opt-out if possible when those cases come forward. On the other hand, Appellant's counsel should not be afraid to recommend a case for ADR where the issues are straightforward and may be easily resolved. Even if the case is more difficult, it may be advantageous to have the case go through ADR to allow for a better assessment of the strengths and weaknesses of the case. Andrew Wlodyka BA, L.L.B. Lowe & Company Associate Counsel practicing in the immigration and citizenship law group. Involved in applications for permanent residence in Canada, employment, student and visitor visas, refugee claims, immigration appeals, citizenship applications and appeals, and Federal Court applications for judicial review and appeals. Former Assistant Deputy Chair, Immigration and Refugee Board, Former Chair of the Immigration Section of the Canadian Bar Association (B.C. Branch) and Chair of its Overseas Committee. Has lectured on immigration and citizenship related topics for the People's Law School, the Continuing Legal Education Society of B.C., Insight and the Immigration Law and Practice Course administered jointly by University of British Columbia Continuing Studies in conjunction with Seneca College Centre for Intercultural Communication. Associate Editor of the Immigration Law Reporter (Carswell). Has published guide about practice before the Immigration Appeal Division of the Immigration and Refugee Board. Admitted to the Bar of British Columbia in 1978. Rule 20 of the Immigration Appeal Division Rules. Assessing Efficiency, Effectiveness and Quality. An Evaluation of the ADR Program of the Immigration Appeal Division of the Immigration and Refugee Board, Final Report, March 2002, prepared by Leslie H.Macleod & Associates (IAD ADR Evaluation Report). Montreal has a Coordinating Member and No Assistant Deputy Chair. See Appendix A for sample of Summary of Issues and Documents. Rule 28(1) Documents prepared by a party-A document prepared for use by a party in a proceeding must be typewritten on one side of 21.5 cm by 28 cm (81/2”x11”) paper and the pages must be numbered. (2) Photocopies-Any photocopy provided by a party must be a clear copy of the document photocopied and be on one side of 21.5 cm by 28 cm (81/2”x11”) [paper and the pages must be numbered. (3) Numbered documents – A party must number consecutively each document provided by the party. (4) List of documents-If more than one document is provided; the party must provide a list of the documents and their numbers. IAD ADR Evaluation Report, p. 25. Immigration Appeal Division ADR Program Protocols, January 13, 2003, Explanation of Confidentiality Immigration Appeal Division ADR Program Protocol for Opting Out. IAD ADR Evaluation Report, p. 69
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Copyright © 2003 Andrew Wlodyka.