 
IAD.34.1 (October 2007) Disponible en français 
  
IMMIGRATION AND REFUGEE BOARD (IMMIGRATION APPEAL DIVISION) 
 COMMISSION DE L’IMMIGRATION ET DU STATUT DE RÉFUGIÉ (SECTION D’APPEL DE L’IMMIGRATION)
 
 
 IAD File No./N° de dossier : TA6-05555 Client ID No./ N° ID client : 2427-0795   
Reasons and Decision − Motifs et décision 
 
Removal Order/Application to Reopen  
   Appellant(s) Appelant(s) 
XXXXXXXXXXXXXXXXXXX 
  Respondent Intimé 
The Minister of Public Safety and Emergency Preparedness Le Ministre de la Sécurité Publique et de la Protection Civile  
 Date(s) and Place Date(s) et Lieu de of Hearing l’audience 
In Chambers Toronto, Ontario  
 Date of Decision Date de la Décision  
December 7, 2010 
 Panel Tribunal 
XXXXXXXXXXXXX 
  Appellant’s Counsel Conseil de l’appelant(s) 
EsXXXXXXXXXXXXXXXXXXXX Barrister and Solicitor 
  Minister’s Counsel Conseil de l’intimé 
XXXXXXXXXXXX   
  
2010 CanLII 96989 (CA IRB)
IAD File No./N° de dossier : TA6-05555 Client ID No./ N° ID client : 2427-0795  1  
 NOTICE OF DECISION AND REASONS 
 [1] XXXXXXXXXXXXXXXXXXX (the appellant) applies to the Immigration Appeal Division (the IAD) to reopen his appeal.  On June 3, 2010, Member XXXXXXX declared his appeal to be abandoned under section 168(1) of the Immigration and Refugee Protection Act (the IRPA), because the appellant failed to appear at a show cause conference set for May 21, 2010 at 9:00 a.m.  The appellant’s attendance at the show ca use conference was required after he failed to respond to a “Removal Order Appeal – Notice of Confirmation of Readiness to Proceed” letter that was sent to him on or about March 15, 2010.  [2] On October 12, 2010, the appellant’s counsel a pplied to the IAD to reopen the appeal.  The appellant’s counsel submitted that by ab andoning the appellant’s appeal, the IAD had committed a breach of natural justice and thus it  would be equitable to reopen the appeal.  The appellant’s counsel stated that the appellant was unable to appear at his hearing or Show Cause hearing because he was being held in detention at those times.  He wrote, in addition, that the appellant also suffered from a variety of mental illnesses.  The appellant has sworn an affidavit to this effect.  [3] By way of background, at an admissibility hearing held on April 6, 2006, the appellant was found to be inadmissible to Cana da pursuant to section 36(1)(a) of IRPA and ordered deported.  He filed a Notice of Appeal on Ap ril 13, 2006 which was received by the IAD on April 27, 2006.  At the time he was ordered deported the appellant was incarcerated at Maplehurst Correctional Centre in Milton, Ontario.  This is the address he provided to the IAD.  He was released on June 23, 2006, according to the Case Processing Instructions and Activity Sheet (IAD Sheet); however, he did not provide a change of address to the IAD.  The IAD did have an updated address following his release and this was 400 Webb Drive, Apartment 1204, Mississauga, Ontario, L5B 3Z2.  On October 1 7, 2007, the IAD provided the appellant with a Confirmation of Readiness letter and an Appellant’s Reply form, and the appellant was required to confirm he was ready and willing to proceed by providing the completed Reply to the IAD within the required period.  This letter and Reply form was sent to the Webb Drive address.   
2010 CanLII 96989 (CA IRB)
IAD File No./N° de dossier : TA6-05555 Client ID No./ N° ID client : 2427-0795  2  
 [4] This letter and Reply form were returned to the IAD.  Abandonment proceedings were commenced.   [5] The IAD had no further contact information for the appellant until November 20, 2007, when the IAD sent an email to the Canada Border Services Agency (CBSA) requesting his contact information on the CBSA file.  Accordi ng to the IAD Sheet at that time the CBSA had for him the following address: 100 Wellesley  Street, Apartment 806, Toronto, Ontario M4Y 1C4.  There was no telephone information.  [6] The IAD sent the appellant a Notice to Appear dated January 4, 2008 for a Show Cause hearing at the address that the Minister had on file for him as the aforesaid 100 Wellesley Street, Apartment 806, Toronto, Ontario.  That Notice was returned to the IAD on February 6, 2008.  [7] On February 25, 2010, CBSA emailed the IAD indi cating that the appellant was due to be released from custody at the Toronto Jail on February 26, 2010, and CBSA provided the most recent address for the appellant that was entered in the ICON at the time of his arrest on January 13, 2010: 295 Jarvis Street, Unit 221, Toronto, Ontario, M5B 2C2.  [8] On March 15, 2010, the IAD sent the appellan t a Notice to Appear at Assignment Court on April 9, 2010 at 9:00 a.m.  The Notice was sent  to 295 Jarvis Street, Unit 221, Toronto, Ontario, M5B 2C2.   [9] The appellant did not appear and there was no  returned mail.  The IAD then sent the applicant a Notice to Appear at a No Show Court to be held on May 21, 2010 at 9:00 a.m. to explain why he failed to appear in the Assignment Court scheduled for April 9, 2010 and why his appeal should not be abandoned.  The Notice was se nt at the only address that the IAD currently had for the appellant: 295 Jarvis Street, Unit 221, Toronto, Ontario, M5B 2C2.  
2010 CanLII 96989 (CA IRB)
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 [10] The appellant did not appear.  The Notice was not returned.  The appellant did not contact the IAD prior to or on May 21, 2010 to explain his non-attendance or request a postponement.  Consequently, Member XXXXXXX abandoned the appeal on June 3, 2010.  Power to declare an appeal abandoned  [11] The IAD’s ability to declare an appeal abandoned derives from section 168(1) of IRPA.  This section reads: 
168. (1) Abandonment of proceeding — A Division may determine that a proceeding before it has been abandoned if the Division is of the opinion that the applicant is in default in the proceedings, including by failing to appear for a hearing, to provide information required by the Division or to communicate with the Division on being requested to do so.  
 [12] Whether an appeal is declared abandoned on th e basis of a panel’s decision at a hearing or after the commencement of abandonment proceedi ngs is situation specific and there are often good reasons to declare a matter abandoned in the hearing room, just as there are equally good reasons for deferring the decision until after the appellant has had an opportunity to “show cause” why his/her appeal should not be declared abandoned.  [13] In this case, after the appellant failed to re spond to a series of Notices, most recently a requested appearance at Assignment Court and at a Show Cause Court to explain his non- attendance at the latter.  The file is carefully documented.  The appellant was incarcerated for various periods of time and it is not clear what, if any, addresses he provided to the IAD beyond the initial address on the Notice of Appeal date d April 13, 2006, when he indicated his address as Maplehurst Correctional Institution.  Thereafter, he may have provided one additional address – 100 Wellesley Street, Apartment. 806, Toronto, Ontario, M4Y 1C4 – although the file does not contain a Change of Address to the latter address and a Notice to this address was subsequently returned.  Any other addresses used were provided by CBSA.   
2010 CanLII 96989 (CA IRB)
IAD File No./N° de dossier : TA6-05555 Client ID No./ N° ID client : 2427-0795  4  
 Were there any preconditions to the appe llant being able to show cause?   [14] The IAD presumes that given the importan ce of the matter under appeal, in this case deportation, that appellants are motivated to pr ovide correct mailing addresses when they file appeals.  However, whether or not the address given is correct is largely outside the hands of the IAD unless some future event occurs, such as th e return of mail, which creates doubt that an address is correct.  In the panel’s experience this happens from time to time.  People are sloppy in writing and fail to provide postal codes or suite  numbers.  Literacy can also be a factor in getting the address right.  [15] An important indicator that there is no problem  is the absence of returned mail.  The IAD presumes that mail, once sent, is delivered within three to five days of mailing to local addresses in Canada.  This is the presumption of regularit y, that is, that all things being equal, the post office will do its job in accordance with the regulations governing the mail and that it will be delivered in a timely manner to any given addressee at the address indicated.  This presumption is of course refutable on the basis of credible evidence to the contrary.  In this case, however, there was no returned mail addressed to the applicant at 295 Jarvis Street, Unit 221, Toronto, Ontario, M5B 2C2 for either the conference at Assignment Court scheduled for April 9, 2010 or the Show Cause conference scheduled for Ma y 21, 2010.  Thus, it cannot be concluded that procedural fairness was breached in resp ect of the provision of adequate notice.  Diligent Pursuit   [16] Obviously the IAD has a duty of care, but the appellant is also obliged to diligently pursue his/her appeal.  The equation is not one sided, but rather an onus is placed on the appellant to do things in a positive, conscious and wilful manner.  For example, the appellant is required to participate in proceedings of the IAD and to respond to requests for information.  Section 168(1) of IRPA noted above anticipates dire conseque nces from a failure to comply with such requirements.  
2010 CanLII 96989 (CA IRB)
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 [17] The appellant is also under a positive obligatio n to do things that are only under his/her direct control.  For example, the IAD is not re sponsible for a decision to change residential address.  The responsibility to inform the IAD of a change in address falls squarely on the appellant’s shoulders and indeed appellants  are reminded of this, obvious, and important necessity.   [18] The Notice of Appeal requires that the appella nt provided certain basis information such as name, mailing address, counsel’s contact info rmation, etc.  The Notice of Appeal, which in this case was signed by the appellant, clearly indicates on page two: 
 
IMPORTANT : CHANGE IN CONTACT INFORMATION FOR YOU OR YOUR COUNSEL:  You must notify the Immigration Appeal Division, in writing and without delay, if the contact information for you or your counsel changes.    
[19] The panel finds that the onus is on the appe llant to comply with the requirement that he/she provide change of contact information in a timely manner and in writing, and that in failing to do so an appellant fails to diligently pursue his/her appeal.  In general, the panel is of the view that appellants must be held to the consequences of their actions or omissions.    Did the appellant comply with the requir ement that he file change of contact information?   [20] It is clear that the applicant did not advise ei ther the IAD or the Minister of the change in his address other than perhaps provide the IAD with the aforesaid Wellesley Street address which was returned undelivered.  It was then left  to the IAD to attempt to track the appellant’s whereabouts through the CBSA, which enabled th em to locate him at various correctional institutions and at the aforementioned Jarvis Street Address.     [21] The appellant has never provided a telephone  number contact to the IAD and this is reflected in the data on the IAD Sheet.  
2010 CanLII 96989 (CA IRB)
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 [22] The onus is clearly on the appellant to promp tly report any change of contact information to the IAD.  He did not do so, subject to the limited exception noted above.    [23] Although the appellant’s counsel refers to ment al health issues, no medical evidence has been filed and no direct linkage has been credibly established in his case between the appellant’s failure to provide adequate ongoing cont act information and mental illness.  [24] The appellant’s failure to keep the IAD properl y apprised can not be blamed on the IAD.  It used whatever resources it was able to draw upon in its attempt to provide him with timely and adequate Notices.    Jurisdiction to re-open an appeal  [25] The IAD’s jurisdiction to reopen an a ppeal derives from section 71 of the IRPA, which section provides, 
 
Reopening appeal -- The Immigration Appeal Division, on application by a foreign national who has not left Canada under a removal order, may re-open an appeal if it is satisfied that it failed to observe a principle of natural justice
. 
 [26] In Nazifpour
1 the Federal Court of Appeal ruled that the IAD does not have continuing equitable jurisdiction with respect to reopening appeals.  Writing for the Court, XXXXX, J.A. stated at paragraph 83:   
 
For these reasons, I would dismiss the appeal and answer in the affirmative the following slightly modified version of the certified question:  Does section 71 of IRPA extinguish the continuing “equitable jurisdiction” of the IAD to reopen an appeal against a deportation order, except where the IAD has failed to observe a principle of natural justice? 
 [27] Thus the language in IRPA is specific and provides for only one ground on which the IAD may reopen an appeal.
2  
                                                           
1 XXXXXXXXX, XXXXXX v. M.C.I. (F.C.A. no. A-20-06), Evans, Linden, Nadon, February 8, 2006, 2007 FC 35. 
2 Ibid. 
2010 CanLII 96989 (CA IRB)
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 [28] Having reviewed the contents of the appellant’s file, the panel is satisfied that the IAD did not fail to observe a principle of natural justice when it declared the appeal abandoned.  The panel’s reasons are as follows.  Did the IAD fail to observe a principle of  natural justice or breach procedural fairness?   [29] As noted above, the IAD acted in good faith in providing adequate Notice to the appellant, said Notice having been duly mailed in an envelope correctly addressed to the appellant at his last known address.   [30] The inability of the IAD to follow through on contact attempts beyond its mailings was seriously hampered by the appellant’s failure  to provide telephone contact information.  [31] A major point raised by the appellant’s counsel was that the appellant could not appear at his appeal hearings “due to the unfortunate fact that he was being held in detention at the time the hearings took place.”  The appellant makes this  point himself in his affidavit dated September 30, 2010.  However, this is refuted by the Stat utory Declaration dated November 3, 2010 from XXXXXXXXXXXXXXXXX, Hearings Advisor for CBSA, which indicates that the appellant was not in custody on April 9, 2010, nor was he in cust ody on May 21, 2010, following information he received after contacting the Toronto East  Detention Centre Record Department.  [32] The appellant also deposed in his affidavit that at the relevant times he had been struggling with mental health issues in addi tion to drug addiction problems.  However, he presented no medical evidence of either and did not  indicate how this struggle had prevented him from appearing on the aforesaid dates.  More im portant, there us no record in the file of any contact from him or from anyone else inform ing the IAD about these problems and how they might have been a factor in his non-attendance.   [33] He also said that he did not have counsel at the time.  However, he was given adequate Notice and had the opportunity to retain counsel, or contact the IAD to request a postponement 
2010 CanLII 96989 (CA IRB)
IAD File No./N° de dossier : TA6-05555 Client ID No./ N° ID client : 2427-0795  8  
 to allow him to do so.  He did neither.  Retaini ng counsel is not an absolute right so long as reasonable opportunity is afforded to allow an appellant requesting to retain counsel.   The IAD’s equitable jurisdiction   [34] The IAD has an equitable jurisdiction to a llow appeals or stay removal orders on humanitarian and compassionate grounds pur suant to sections 67(3) and 68(10 of IRPA.  Does the IAD have an equitable jurisdiction in respect to the reopening of appeals?  The panel answers the question in the negative.  [35] Again, as discussed by Justice XXXXX in XXXXXXXXX, staring at paragraph 58: 
 
[58] Mr XXXXXXXXX relies on the presumption that legislation does not implicitly intend to change the common law or to remove rights established by the common law: XXXXXXXX, supra at 341. Accordingly, he says, section 71 is presumed not to remove the common law power of the IAD to reopen a decision in order to ex ercise its “equitable” jurisdiction.  [59] In my opinion, however, the cases cited by  counsel as authority for this presumption are inapplicable here, since they concern rights that are solely the creation of the common law. In the present case, in contrast, the courts have inferred that the appellate tribunal has jurisdiction to reopen on the basis of new evidence from the broad discretionary nature of its statutory power to stay the execution of a deportation “i n all the circumstances of the case”.   [60] The IAD is a creature of stat ute, and its implicit power to reopen to consider new evidence is necessarily statutory in origin. The fact that the courts inferred this power from its express powers does not make the IAD’s pre-IRPA right to reopen a “common law” right for present purposes.
3 
 [36] Thus, the panel can only reopen a matter in wh ich it is clearly established that the IAD has, through its own acts or omissions, offended a pr incipal of natural justice such as to deny the appellant his right to be heard.     [37] In examining all the circumstances of the case,  the panel cannot find that in declaring the appellant’s appeal abandoned, the IAD has failed to  observe a principle of natural justice.  Accordingly, for the reasons set out above, the pa nel denies the application to reopen the appeal.   
                                                           
3 Supra, footnote 1. 
2010 CanLII 96989 (CA IRB)
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 NOTICE OF DECISION 
  
The appellant’s application to reopen dated October 12, 2010 is dismissed.      “XXXXXXXXXXXXX”  
    XXXXXXXXXXXXX     December 7, 2010  
    Date  
   
Judicial Review – Under section 72 of the Immigration and Refugee Protection Act, you may make an application to the Federal Co urt for 
judicial review of this decision, with leav e of that Court.  You may wish to get advi ce from counsel as soon as possible, since  there are time limits 
for this application. 
 
2010 CanLII 96989 (CA IRB)

