March 19, 2018

Self-represented litigants owed the opportunity to fully present their views and evidence before the Immigration Appeal Division

The Federal Court has recently affirmed that the right to a fair hearing places an ongoing obligation on the decision-maker, throughout legal proceedings, to assess whether a self-represented litigant is truly ready to proceed on their own, even where an Applicant indicates they wish to do so at the outset of a hearing.

In Clarke v. Canada (Citizenship and Immigration), 2018 FC 267, the applicant sought judicial review of a decision by the Immigration Appeal Division refusing to allow her residency obligation appeal on humanitarian and compassionate (H&C) grounds. The Applicant is a 34-year-old who is literate and whose first language is English.

The Court acknowledged that, at the outset of the hearing, the IAD member had asked the Applicant if she was prepared to proceed without legal representation, to which she responded in the positive. The IAD member also explained to the applicant how the hearing would proceed and the basic legal framework and analysis when considering H&C factors in a residency obligation appeal.

However, the Court found that, once it became apparent to the IAD member, as a result of certain comments made by the applicant throughout the hearing, that the applicant did not fully appreciate or understand the nature of the legal proceedings, the IAD member’s failure to provide the applicant with another opportunity to retain legal counsel, to advise her of the availability of legal aid, or to advise her that she could still submit additional material once the hearing had ended amounted to a breach of procedural fairness.

While the content of the duty to ensure a fair hearing remains context-dependant and to be determined on a case-by-case basis, this decision signals that there remains an ongoing procedural fairness obligation on the part of decision-makers, throughout a legal proceeding and regardless of whether or not a self-represented litigant declines legal representation at the outset,  to be mindful of whether the applicant is truly understanding or appreciating the legal proceedings at hand and to provide them with the opportunity to present their views and evidence fully.