Marginal note:Opportunity to explain
65 (1) In determining whether a claim has been abandoned under subsection 168(1) of the Act, the Division must give the claimant an opportunity to explain why the claim should not be declared abandoned,
(a) immediately, if the claimant is present at the proceeding and the Division considers that it is fair to do so; or
(b) in any other case, by way of a special hearing.
Marginal note:Special hearing — Basis of Claim Form
(2) The special hearing on the abandonment of the claim for the failure to provide a completed Basis of Claim Form in accordance with paragraph 7(5)(a) must be held no later than five working days after the day on which the completed Basis of Claim Form was due. At the special hearing, the claimant must provide their completed Basis of Claim Form, unless the form has already been provided to the Division.
Marginal note:Special hearing — failure to appear
(3) The special hearing on the abandonment of the claim for the failure to appear for the hearing of the claim must be held no later than five working days after the day originally fixed for the hearing of the claim.
Marginal note:Factors to consider
(4) The Division must consider, in deciding if the claim should be declared abandoned, the explanation given by the claimant and any other relevant factors, including the fact that the claimant is ready to start or continue the proceedings.
Marginal note:Medical reasons
(5) If the claimant’s explanation includes medical reasons, other than those related to their counsel, they must provide, together with the explanation, the original of a legible, recently dated medical certificate signed by a qualified medical practitioner whose name and address are printed or stamped on the certificate.
Marginal note:Content of certificate
(6) The medical certificate must set out
(a) the particulars of the medical condition, without specifying the diagnosis, that prevented the claimant from providing the completed Basis of Claim Form on the due date, appearing for the hearing of the claim, or otherwise pursuing their claim, as the case may be; and
(b) the date on which the claimant is expected to be able to pursue their claim.
Marginal note:Failure to provide medical certificate
(7) If a claimant fails to provide a medical certificate in accordance with subrules (5) and (6), the claimant must include in their explanation
(a) particulars of any efforts they made to obtain the required medical certificate, supported by corroborating evidence;
(b) particulars of the medical reasons included in the explanation, supported by corroborating evidence; and
(c) an explanation of how the medical condition prevented them from providing the completed Basis of Claim Form on the due date, appearing for the hearing of the claim or otherwise pursuing their claim, as the case may be.
Marginal note:Start or continue proceedings
(8) If the Division decides not to declare the claim abandoned, other than under subrule (2), it must start or continue the proceedings on the day the decision is made or as soon as possible after that day.
Notice of Constitutional Question
Marginal note:Notice of constitutional question
66 (1) A party who wants to challenge the constitutional validity, applicability or operability of a legislative provision must complete a notice of constitutional question.
Marginal note:Form and content of notice
(2) The party must complete the notice as set out in Form 69 of the Federal Courts Rules or any other form that includes
(a) the party’s name;
(b) the Division file number;
(c) the date, time and location of the hearing;
(d) the specific legislative provision that is being challenged;
(e) the material facts relied on to support the constitutional challenge; and
(f) a summary of the legal argument to be made in support of the constitutional challenge.
Marginal note:Providing notice
(3) The party must provide
(a) a copy of the notice to the Attorney General of Canada and to the attorney general of each province of Canada, in accordance with section 57 of the Federal Courts Act;
(b) a copy of the notice to the Minister;
(c) a copy of the notice to the other party, if any; and
(d) the original notice to the Division, together with a written statement indicating how and when the copies of the notice were provided under paragraphs (a) to (c), and proof that they were provided.
Marginal note:Time limit
(4) Documents provided under this rule must be received by their recipients no later than 10 days before the day on which the constitutional argument is made.
Marginal note:Notice of decision and reasons
67 (1) When the Division makes a decision, other than an interlocutory decision, it must provide in writing a notice of decision to the claimant or the protected person, as the case may be, and to the Minister.
Marginal note:Written reasons
(2) The Division must provide written reasons for the decision together with the notice of decision
(a) if written reasons must be provided under paragraph 169(1)(d) of the Act;
(b) if the Minister was not present when the Division rendered an oral decision and reasons allowing a claim for refugee protection; or
(c) when the Division makes a decision on an application to vacate or to cease refugee protection.
Marginal note:Request for written reasons
(3) A request under paragraph 169(1)(e) of the Act for written reasons for a decision must be made in writing.
Marginal note:When decision of single member takes effect
68 (1) A decision made by a single Division member allowing or rejecting a claim for refugee protection, on an application to vacate or to cease refugee protection, on the abandonment of a claim or of an application to vacate or to cease refugee protection, or allowing an application to withdraw a claim or to withdraw an application to vacate or to cease refugee protection takes effect
(a) if given orally at a hearing, when the member states the decision and gives the reasons; and
(b) if made in writing, when the member signs and dates the reasons for the decision.
Marginal note:When decision of three member panel takes effect
(2) A decision made by a panel of three Division members allowing or rejecting a claim for refugee protection, on an application to vacate or to cease refugee protection, on the abandonment of a claim or of an application to vacate or to cease refugee protection, or allowing an application to withdraw a claim or to withdraw an application to vacate or to cease refugee protection takes effect
(a) if given orally at a hearing, when all the members state their decision and give their reasons; and
(b) if made in writing, when all the members sign and date their reasons for the decision.
Marginal note:No applicable rule
69 In the absence of a provision in these Rules dealing with a matter raised during the proceedings, the Division may do whatever is necessary to deal with the matter.
Marginal note:Powers of Division
70 The Division may, after giving the parties notice and an opportunity to object,
(a) act on its own initiative, without a party having to make an application or request to the Division;
(b) change a requirement of a rule;
(c) excuse a person from a requirement of a rule; and
(d) extend a time limit, before or after the time limit has expired, or shorten it if the time limit has not expired.
Marginal note:Failure to follow rule
71 Unless proceedings are declared invalid by the Division, a failure to follow any requirement of these Rules does not make the proceedings invalid.
Coming into Force
Marginal note:S.C. 2010, c. 8
Footnote *74 These Rules come into force on the day on which section 26 of the Balanced Refugee Reform Act comes into force, but if they are registered after that day, they come into force on the day on which they are registered.
Return to footnote *[Note: Rules in force December 15, 2012, see SI/2012-96.]
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