Postponements and Adjournments

The Appeal Division has experienced delays in completing hearings and incurred substantial cost in postponing and rescheduling hearings which do not proceed on the original date set for hearing. Loss of hearing room time due to avoidable postponements and adjournments means that the cases of parties who are awaiting a hearing are further delayed.

The Appeal Division has a duty to the parties and to the public to ensure that pending appeals are dealt with expeditiously. To this end, and in keeping with its case management initiative, the Appeal Division expects the cooperation of all parties and their counsel in complying with the following directives:

A.  POSTPONEMENTS

GENERAL PRINCIPLES

The Appeal Division generally sets hearing dates with the consent of the parties. The exceptions to this rule arise when parties or their counsel do not respond to Appeal Division efforts to set a hearing date, or seek to delay setting a hearing date without justification. In such instances, the Appeal Division sets a hearing date which gives the parties a reasonable amount of time to prepare.

In every case where a hearing date is set, it is expected that the parties will have completed the evidence-gathering process sufficiently in advance of the hearing date to ensure compliance with disclosure requirements of the Immigration Appeal Division Rules. It is expected that they will be prepared to proceed on the date set for hearing. Furthermore, where parties have consented to a hearing date, that consent will be regarded as an explicit and positive commitment to the Appeal Division to be present, to be prepared to proceed, and to have made no other commitments which will render attendance impossible.

1.  AGREEING TO A HEARING DATE MEANS MAKING A COMMITMENT TO PROCEED

In light of the above principles, when the parties consent to a hearing date, they are expected to be ready to proceed on the date set.

The Appeal Division has not imposed a hearing date on the parties in such instances. The parties have been consulted and have consented to the hearing date. The fact that the parties have made a commitment to proceed is a factor the Appeal Division will consider in determining whether or not a postponement will be granted.

2.  POSTPONEMENTS ARE EXCEPTIONAL

Postponements will be granted only where there are exceptional circumstances.

Before a postponement is granted, effective alternatives to postponing the hearing will be considered.

3.  CONSENT OF PARTIES TO A POSTPONEMENT IS NOT DETERMINATIVE

Parties and counsel are reminded that the granting of a postponement is within the discretion of the presiding member guided by the considerations outlined in Rule 13(4) of the Immigration Appeal Division Rules. While the consent of the parties is a relevant factor, it is not determinative. Neither party should expect to have a postponement application granted merely because the other party consents to the application.

4.  DUTY OF COUNSEL TO ENSURE REPRESENTATION OF THEIR CLIENTS

Counsel retained by parties who have consented to a hearing date have, by so doing, agreed to appear and present their clients' cases on that date. If counsel cannot appear, it is expected that they will make adequate arrangements for their clients' representation, whether through the appearance of an associate, partner or agent who is prepared to proceed with the appeal.

5.  DUTY OF UNREPRESENTED PARTIES TO RESPECT FIXED DATES

Unrepresented parties are advised at the commencement of the appeal process and at Assignment Court of their right to representation. Accordingly, if an unrepresented party consents to a hearing date, but then seeks a postponement in order to retain counsel, or has since retained counsel who is not available on the hearing date, the fact that the party was advised of the party's right to counsel before the hearing date was set is a factor that will be considered in determining whether or not a postponement will be granted.

B.  ADJOURNMENTS

GENERAL PRINCIPLES

Where a hearing is commenced before the Appeal Division and evidence is taken, but the hearing is not completed, the Appeal Division will attempt to set a date for resumption of the hearing with the consent of the parties.

The principles set out above in relation to postponements apply equally to adjournments.

An additional consideration applies to applications for adjournments: the timely resolution of appeals is hindered by lengthy intervals between sittings of a case which has already commenced.

6.  ADJOURNMENTS FOR LENGTHY PERIODS OF TIME WILL ONLY BE GRANTED IN EXCEPTIONAL CIRCUMSTANCES

The Appeal Division will endeavour to set resumption dates no more than six (6) weeks after the hearing date which led to the resumption. Accordingly, barring exceptional circumstances, parties and their counsel should be prepared to agree to a resumption date within that time frame.

C.  PROCEDURE FOR SEEKING POSTPONEMENTS AND ADJOURNMENTS

7.  APPLICATIONS IN ADVANCE OF THE HEARING MUST BE TIMELY, IN WRITING, AND WITH NOTICE TO THE OTHER PARTY

Applications for postponement or adjournment must be made as far as possible in advance of the hearing date. Such applications must be made in writing and be served on the other party in accordance with the provisions of Rule 26 of the Immigration Appeal Division Rules. Where the other party has not been served with a postponement or adjournment application, the Appeal Division will not consider the application.

8.  DUTY TO PROVIDE ALTERNATIVE DATES

All applications for postponement or adjournment must be accompanied by a minimum of six (6) alternative dates to which the hearing may be rescheduled. A party who is making an application is to contact the Scheduling Unit of the Appeal Division to obtain a range of dates acceptable to the Appeal Division. The Appeal Division will not consider applications where sufficient alternative dates are not provided.

9.  APPLICATIONS RECEIVED LESS THAN 48 HOURS BEFORE THE HEARING

The Appeal Division endeavours to rule on every application for postponement or adjournment, but applications which are received by the Appeal Division less than forty-eight (48) hours before the date of hearing frequently leave the Appeal Division insufficient time to obtain a reply to the application from the respondent and to render a decision. Applications for postponement or adjournment received less than forty-eight (48) hours before the date fixed for hearing may not be considered. Where no response to an application is received by the parties, the principles in paragraph 10 (below) apply.

10.  WHERE NO RESPONSE TO THE APPLICATION IS RECEIVED FROM THE APPEAL DIVISION, TREAT THE APPLICATION AS DENIED

In any case where the Appeal Division cannot communicate its decision to the parties regarding a postponement or adjournment application, they are not to assume that the application has been granted. Rather, they are to assume that the application has been denied. They must then be prepared to attend on the hearing date with all parties, counsel, witnesses and documents present, and be prepared to proceed with the hearing. This does not preclude parties from renewing the application for postponement or adjournment at the hearing.

11.  WHERE APPLICATIONS ARE DENIED THE HEARING WILL PROCEED

Where an application for postponement or adjournment is made at the hearing, or a previously unsuccessful application is renewed at a hearing, all counsel and the parties must attend on the hearing date to speak to the application. Parties must have their witnesses and documentary evidence available and must be prepared to proceed with the appeal if the application is denied.

Dated at Ottawa the 6th day of November, 1997.

Original signed by:

Nurjehan Mawani
Chairperson
Immigration and Refugee Board