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7. CHANGE OF VENUE7. CHANGE OF VENUE

7.1 INTRODUCTION

This chapter deals with the place ("venue") of Refugee Division proceedings and the factors that may be considered when deciding whether to change the location of the proceedings. A request for a "change of venue" is simply a request to have the proceedings moved to another location.

The CRDD Rules allow a party to apply to the Refugee Division to have a preliminary conference, a conference or a hearing held at a place other than the place set out in the notice to appear [ CRDD Rule 12(1)]. The application is made in writing, but in some circumstances the application may be made orally at a hearing [ CRDD Rule 27(2)].

The application for a change of venue must be accompanied by a statement of facts to support the application [ CRDD Rule 12(2)].

The Refugee Division is required to grant the application for a change of venue if it is satisfied that doing so will not adversely affect the proper operation of the Refugee Division, will provide for a full and proper hearing and will dispose expeditiously of the claim or application at issue [ CRDD Rule 12(3)].

7.2 OVERVIEW OF THE LAW

7.2.1 Provisions in the Immigration Act

There is no statutory requirement to hold Refugee Division proceedings at any particular place: the Immigration Act, subsection 68(1), simply provides that the "Refugee Division shall sit at such times and such places in Canada as are considered necessary by the Chairperson for the proper conduct of its business".

The Refugee Division is required to notify the claimant and the Minister in writing of the time and place set for the hearing into the claim [ Immigration Act, s. 69.1(3)].
 

7.2.2 Provisions in the CRDD Rules

Refugee Division proceedings are routinely scheduled to take place in the office that is within the district where the claim was referred to the Division. However, the CRDD Rules specifically permit a party to make an application for a change of venue of a preliminary conference, conference or hearing [ CRDD Rule 12].

The application for a change of venue is made in writing, filed at the registry, and served on every party. The application may also be made orally at a hearing, where the members are satisfied that no injustice is likely to be caused to any party. The Refugee Division may determine the application when it is satisfied that all parties have been given a reasonable opportunity to make representations [ CRDD Rule 27].

Pursuant to CRDD Rule 12(3), the Refugee Division is required to grant the application for a change of venue if it is satisfied that doing so:

• will not adversely affect the proper operation of the Refugee Division,
• will provide for a full and proper hearing and
• will dispose expeditiously of the claim or application at issue.

Where an application for a change of venue is granted, the file relating to the claim or application is transferred to the registry of the place where the conference or hearing is to be held [ CRDD Rule 12(4)].  

7.3 CONSIDERATIONS FOR GRANTING CHANGE OF VENUE

The filing of an application for a change of venue does not, by itself, change the time limits set out in the CRDD Rules for the filing of the claimant's Personal Information Form ( PIF). It is the general practice of the Refugee Division to wait for the PIF to be filed before an application for change of venue is decided.

In deciding the application, the Refugee Division has to consider: (i) the effect of granting a change of venue on the overall operation of the Division; and (ii) the effect upon the particular case, that is, whether a granting change of venue will result in a "full and proper hearing" and will allow the case to proceed expeditiously. Thus, both "fairness" and "efficiency" are considered in the processing of an application for a change of venue.  

7.3.1 General Factors

In deciding an application for a change of venue, the Refugee Division may ask the following questions which relate to one or more of the elements of the test for granting an application for a change of venue:

• what additional cost or inconvenience would be involved to the Refugee Division? (for example: have the members and/or the RCO already prepared for the case? are interpreters available at the proposed location?)

• would the change of venue be desirable or undesirable from the point of view of the pending caseload at either location?

• is a "full and proper" hearing still possible if the change of venue is not granted?

• would a change of venue facilitate the joining of claims of family members or would it result in separating the claims of family members?

• can the party's "problem" be resolved in some other way, such as by statutory declaration, commission evidence, videoconference or teleconference?

• is there a minor or incompetent person involved whose best "designated representative" is in another location?

• is the person in detention?

• are there any terms of release, in cash or performance bonds, which would prevent the person from travelling to the proposed location?

• to what extent would the failure to change venue cause severe financial or other hardships on the claimant or any member of the claimant's family?

7.3.2 Availability of Counsel

In arguing that a change of venue is necessary to ensure a "full and proper" hearing, the claimant may state that the claimant's counsel of choice does not have the time or the desire to travel to the place designated for the hearing, but is willing to handle the case in another city. The claimant may, in other cases, simply state that it would cost too much to bring that counsel to the hearing.

As a general rule, it is not necessary as part of providing a "full and proper hearing" to change the location of the hearing to accommodate the claimant's selection of a particular counsel. The claimant should choose from among the capable counsel who are able and willing to attend the hearing. There may be cases, however, where the particular counsel has acted for the person before, is already very familiar with the nature of the case or, for some other reason, has a substantial connection with the case, and it would be only at considerable difficulty and expense that the claimant would be able to arrange similarly suitable counsel. In such a situation, a much stronger argument can be made that fairness dictates that a change of venue be granted for the purpose of being represented by counsel of choice.

7.3.3 Availability of Witnesses

The claimant may give as a reason for requesting a change of venue the fact that the witnesses to be called reside in another city. Perhaps the witnesses cannot travel or perhaps the claimant cannot afford to pay their travel expenses. (Ordinarily, a party is responsible for getting its own witnesses to the hearing. Under CRDD Rule 23(1), where a party calls a witness, the party is liable to pay the witness's reasonable expenses.) It is not generally necessary for a full and proper hearing to change the venue to accommodate witnesses. If in a particular case, other methods of receiving the evidence of the witness, such as by affidavit or by teleconference or videoconference, are not satisfactory, the panel may consider a transfer of the case. However, this would be a very exceptional procedure, to be used only where it is determined that the evidence to be received is essential in reaching a decision in the case.

7.3.4 Attendance of Claimant

Another situation may arise where the claimant has moved and cannot afford the expense of travelling back to the city where the hearing is scheduled to take place. The Refugee Division is required to hold the hearing in the presence of the claimant, wherever practicable [ Immigration Act, s. 69(2)]. Therefore, where the application is made in good faith, it may be appropriate in this situation to have the case transferred to a city where the claimant is residing (rather than considering the claim to have been abandoned).  

7.3.5 Operational Concerns

The Refugee Division will try to process cases at the same pace across the country but, of course, the Division does not control the number of claims being made or the travel patterns of persons reaching Canada. It is not in the interest of the Refugee Division as a whole to see cases transferred from an office where there is a small number of pending cases to an office where there is a large number of pending cases. Claimants might seek transfers simply as a means of lengthening the refugee determination process and not for any proper purpose. Requests of this nature which are not made in good faith may properly be denied.

Once proceedings are under way, a change of venue may involve having to re-hear part of a case and would therefore be both inefficient and costly to the Refugee Division. Obviously, once evidence has been taken at a hearing the party should be expected to establish a stronger reason for requesting a change of venue than would be necessary if the request were made prior to the start of the proceedings.
 
 

Appendix 7A - Immigration Act, ss. 68(1) and 69.1(3)

Immigration Act, s. 68(1):

Immigration Act, s. 69.1(3):

Appendix 7B - CRDD Rules 12 and 27:

Appendix 7C - Selected Case Law

Federal Court

• Estrada, Jorge Lionel Palacios v. M.E.I. ( F.C.T.D., no.  T-2613-91), Strayer, February 17, 1992. (Court held there was ample evidence to support the CRDD's refusal of an application for change of venue from Montreal to Calgary under Rule 11 [now CRDD Rule 12]. The applicants knowingly made themselves unavailable for the scheduled hearing in Montreal, without asking for a transfer prior to the scheduled date.)

Refugee Division

• CRDD V94-00185, Neuenfeldt, June 21, 1995 (Reflex Issue 37, November 1995) (Discussion of general principles for granting a change of venue. The claimant applied in Vancouver for a change of venue from Vancouver to Edmonton. In the circumstances of this case, the panel gave little weight to the potential employment and accommodation in Edmonton. The most relevant issue was that the claimant had retained counsel in Edmonton. However, there was no indication that this counsel had any more substantial connection to the claim than the original counsel, who had agreed to the scheduled hearing date. The inconvenience to the claimant and potential witnesses did not outweigh the interference with the Board's operations and the provision of a full and fair hearing. Application denied)

Appendix 7D - List of Refugee Division Offices

OTTAWA / ATLANTIC OPERATIONS

Canada Building
(Minto Place)
344 Slater Street, 11 ^th Floor
Ottawa, Ontario
K1A 0K1

INFORMATION (613) 943-8630
FACSIMILE       (613) 943-1550

TORONTO

74 Victoria Street
Suite 400
Toronto, Ontario
M5C 3C7

INFORMATION (416) 973-6035
RECEPTION (416) 954-1000

MONTREAL (514) 283-7733

Guy Favreau Complex
East Tower, Room 102
200 René Lévesque Blvd
Montreal, Quebec
H2Z 1X4

INFORMATION (514) 283-7733

VANCOUVER

Library Square
300 Georgia Street West
Suite 1600
Vancouver, B.C.
V6B 6C9

RECEPTION/INFORMATION (16th floor) / (604) 666-5946
RECEPTION (17th floor) (604) 666-7451
RECEPTION (18th floor) (604) 666-1780
FACSIMILE (604) 666-3043

CALGARY

Fording Place, 9th Floor
205 - 9th Avenue, S.E.
Calgary, Alberta
T2G 0R3

INFORMATION (403) 292-6134
FACSIMILE (403) 292-6131

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