Designated Representatives (continued)
Marginal note:Termination of designation
50 The Division may, on its own initiative or on the request of a party, terminate a designation if the Division is of the opinion that the representative is no longer required or suitable. The Division may designate a new representative if required.
Marginal note:End of designation — 18 years of age
51 The designation of a representative for a person who is under 18 years of age ends when the person reaches 18 years of age unless the representative has also been designated because the person is unable to appreciate the nature of the proceedings.
Marginal note:End of designation
52 The designation of a representative for a person ends when the Division makes a decision allowing or dismissing the appeal or a decision that stays the removal order.
Marginal note:Need for interpreter
53 (1) If a party needs an interpreter for a proceeding, the party must notify the Division in writing and specify the language and, if any, dialect to be interpreted.
Marginal note:Time limit
(2) The notice provided under subrule (1) must be received by the Division no later than 20 days before the date fixed for the next proceeding.
Marginal note:Need for interpreter — witness
(3) If a witness needs an interpreter for a proceeding, the party must notify the Division in writing and specify the language and dialect, if any, of the interpreter at the same time as the witness information is provided under rule 55.
Marginal note:Interpreter’s oath
54 The interpreter must take an oath or make a solemn affirmation to interpret accurately.
Marginal note:Providing witness information
55 (1) A party who wants to call a witness must provide the following information in writing to the other party and the Division:
(a) the witness’s contact information;
(b) a brief statement of the purpose and substance of the witness’s testimony;
(c) the time needed for the witness’s testimony;
(d) the party’s relationship to the witness;
(e) an indication of whether the party wants the witness to testify remotely and, if so, the means of live telecommunication by which they will testify; and
(f) in the case of an expert witness,
(i) a description of the expert witness’s qualifications, and
(ii) a brief summary of the testimony to be given, signed by the expert witness.
Marginal note:Proof document was provided
(2) Documents provided to the Division under this rule must be accompanied by a written statement indicating how and when they were provided to the other party.
Marginal note:Time limit — 30 days
(3) Documents provided under this rule must be received no later than 30 days before the date fixed for the hearing.
Marginal note:Failure to provide witness information
56 If a party does not provide the witness information in accordance with rule 55, the Division may decide to allow the witness to testify after considering any relevant factors, including
(a) the reason why the information was not provided;
(b) whether the proposed testimony is relevant and has probative value; and
(c) in the case of a party other than the Minister, whether the party has counsel.
Marginal note:Requesting summons
57 (1) A party who wants the Division to order a person to testify at a hearing must make a request to the Division for a summons, either orally during a proceeding or in writing.
(2) The Division must consider any relevant factors before deciding to issue a summons, including whether
(a) the testimony of the person is necessary to a full and proper hearing;
(b) the person is able to give the testimony; and
(c) the person has agreed to be summoned as a witness.
Marginal note:Using summons
(3) To use a summons, the party must
(a) provide the summons to the summoned person by hand;
(b) provide a copy of the summons to the Division, together with a written statement indicating the name of the person who provided the summons and the date, time and place that it was provided by hand; and
(c) pay or offer to pay the summoned person the applicable witness fees and travel expenses as determined in accordance with Tariff A of the Federal Courts Rules.
Marginal note:Cancelling summons
58 To cancel a summons, the person who is summoned to appear as a witness must make an application in writing to the Division in accordance with rule 85, but is not required to provide an accompanying affidavit or statutory declaration under subrule 85(3).
Marginal note:Arrest warrant
59 (1) If a person does not obey a summons to appear as a witness, the party who requested the summons may make a request to the Division, orally or in writing, to issue a warrant for the person’s arrest.
Marginal note:Written request
(2) A party who makes a written request must provide supporting evidence in an accompanying affidavit or statutory declaration.
Marginal note:Requirements for issue of arrest warrant
(3) The Division may issue an arrest warrant only if
(a) the person summoned was provided the summons by hand or the person is avoiding being provided the summons;
(b) the person was paid or offered the applicable witness fees and travel expenses as determined in accordance with Tariff A of the Federal Courts Rules;
(c) the person did not appear at the hearing as required by the summons; and
(d) the person’s testimony is still needed for a full and proper hearing.
Marginal note:Content of arrest warrant
(4) When the Division issues an arrest warrant, the warrant must include directions concerning detention and release.
Notice to Appear
Marginal note:Content of notice
60 (1) The Division must notify the parties in writing of the date, time and location fixed for any proceeding.
Marginal note:Changes to date, time or location
(2) If any changes are made to the date, time or location, the Division must notify the parties in writing without delay.
Marginal note:Date fixed for hearing
61 The hearing must take place at least 30 days after the day on which the parties receive the notice to appear, unless
(a) the hearing has been adjourned or postponed; or
(b) the parties consent to an earlier date.
Marginal note:Party in custody
62 The Division may order a person who holds a party other than the Minister in custody to bring that party to a proceeding at the location specified by the Division.
Marginal note:Failure to appear
63 If a party fails to appear at a proceeding, the Division may
(a) determine that the appeal has been abandoned in accordance with subsection 168(1) of the Act;
(b) hold the proceeding in the absence of the party;
(c) prohibit the party from presenting further evidence, questioning witnesses, or making submissions to the Division;
(d) decide the issues in the proceeding on the basis of the evidence provided; or
(e) take any other action that it considers appropriate.
Informal Resolution Process
Marginal note:Participation in informal resolution process
64 The Division may require the parties to participate in an informal resolution process in order to encourage them to resolve an appeal without a hearing.
Marginal note:Obligations of parties and counsel
65 (1) In any informal resolution process, the parties must be prepared to resolve the appeal and their counsel must have authority to do so. The parties and their counsel must also
(a) participate in good faith;
(b) follow the directions given by the Division with respect to the process, including the manner of participation; and
(c) provide to each other and to the Division any document that the Division requires them to prepare or provide.
(2) If a document has been provided to the other party and the Division under paragraph (1)(c) for the purpose of an informal resolution process, it is deemed to have been provided in accordance with rule 26 for the rest of the appeal.
Marginal note:Confidentiality of discussions — informal resolution process
66 Any information about a matter discussed in an informal resolution process, including at an ADR conference, is confidential and must not be used later in the appeal or otherwise disclosed to a non-party unless
(a) the information could be obtained in a way that is not part of the informal resolution process;
(b) the matter relates to an offence under the Act or a breach of these Rules; or
(c) the person who gave the information agrees to its disclosure.
Marginal note:Document not confidential
67 A document provided for the purposes of an informal resolution process, including an ADR conference, is not confidential and may be used for the rest of the appeal.
Marginal note:Disclosure to responsible authorities
68 Disclosure under paragraph 66(b) may be made only to the authorities responsible for enforcement of the Act or these Rules.
Marginal note:ADR conference
69 (1) The Division may decide to hold an ADR conference on its own initiative or on receipt of a request made by a party that contains a statement of the reasons the party believes the appeal can be resolved through such a conference.
Marginal note:Request provided to other party
(2) The party must provide the request made under subrule (1) to the other party.
Marginal note:Assignment of ADR conference facilitator
70 (1) The Division must assign a member of the Division or an employee of the Board as ADR conference facilitator.
Marginal note:Member must not hear appeal
(2) A member of the Division who facilitates an ADR conference must not hear the appeal, unless the parties agree.
Marginal note:Agreement in ADR conference
71 (1) An agreement to resolve an appeal that is reached through an ADR conference must be confirmed by the parties or their counsel and approved in writing by the Division.
Marginal note:Agreement not confidential
(2) The agreement is not confidential.
Marginal note:Requirement to participate in conference
72 (1) The Division may, on its own initiative or on receipt of a request made by a party, require the parties to participate in a conference, other than an ADR conference, to
(a) try to resolve some or all of the issues;
(b) narrow the issues in order to simplify the hearing;
(c) discuss issues, relevant facts and any other matter that would make the appeal as fair and efficient as possible; and
(d) give information to help the Division fix a date for the proceeding.
Marginal note:Information or documents
(2) The Division may require the parties to provide any information or document at or before the conference.
Marginal note:Written record
73 The Division must make a written record of any decision or agreement made at a conference.
Conduct of a Hearing
74 (1) The Division must, in any hearing before it, give the parties the opportunity to present evidence, question witnesses and make submissions.
Marginal note:Issues and evidence
(2) Taking into account the nature and complexity of the issues and the relevance of the evidence, the Division may
(a) narrow the issues to be addressed at the hearing, including by identifying facts that are not in dispute;
(b) establish the order in which the issues are to be addressed;
(c) direct and limit the evidence to be presented; and
(d) limit the number and the length of questioning of witnesses.
Marginal note:Questioning witnesses
(3) The Division may question any witness at any point during the hearing.
Marginal note:Additional evidence or witnesses
(4) The Division may notify the parties if additional evidence or witnesses are likely to assist the Division in deciding the appeal.
Marginal note:Excluded witness
75 Unless allowed to do so by the Division, a person must not communicate to a witness excluded from a hearing any evidence given while the witness was excluded until the witness has finished testifying.
Marginal note:Oral submissions
76 (1) Submissions must be made orally at the end of a hearing unless the Division orders otherwise.
Marginal note:Limits on submissions
(2) After all the evidence has been heard, the Division may
(a) set time limits for submissions, taking into account the complexity of the issues and the amount of relevant evidence heard; and
(b) indicate what issues need to be addressed in the submissions.
Proceeding in Writing
Marginal note:Proceeding in writing
77 (1) Instead of holding a hearing, the Division may require the parties to proceed in writing if doing so would not be unfair to any party and a hearing is not otherwise required.
Marginal note:Appeal record
(2) The Division may make a decision in a proceeding in writing without being provided with the appeal record under rule 21.
(3) Subrule (1) does not apply to a residency obligation appeal unless the parties agree to resolve the appeal without a hearing.
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