May 7, 2009
The purpose of this Policy Note is to explain the use of persuasive decisions as an important instrument in support of consistent and high-quality decisions in all divisions of the Immigration and Refugee Board of Canada (IRB). This Policy Note also sets out how and in what circumstances a persuasive decision is introduced and, in some cases, revoked.
Persuasive decisions are decisions that have been identified by a division head as being of persuasive value in developing the jurisprudence of a particular division. These decisions are well written, provide clear, complete and concise reasons with respect to the particular element that is considered to have persuasive value, and consider all of the relevant issues in a case. Accordingly, members are encouraged to rely upon persuasive decisions in the interests of consistency and effective decision-making. This consistency also helps parties and counsel prepare for proceedings before the IRB, and may encourage early resolution without a hearing, where appropriate.
Persuasive decisions are to be distinguished from decisions that the Chairperson has designated as jurisprudential guides, pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act. Where a decision has been designated as a jurisprudential guide and the facts underlying the decision are sufficiently close to those in the case before a member, then the member is expected to follow the reasoning in the jurisprudential guide. A member must explain in their reasoning why they are not adopting the reasoning that is set out in a jurisprudential guide when, based on the facts of the case, they would otherwise be expected to follow it. Persuasive decisions are a more informal instrument. Although members are not expected to follow them, they are offered to members as models of sound reasoning that may be adopted in appropriate circumstances.
The use of persuasive decisions by members, tribunal officers (TOs), legal advisors and the Learning and Professional Development Directorate (LPDD) is essential in enabling the IRB to move toward a consistent application of the law in a transparent manner. It also promotes efficiency in the hearing and reasons writing process by making use of quality work done by colleagues. By citing persuasive decisions in their reasons and adopting their reasoning, members can avoid the need to restate legal tests.
A division will introduce a persuasive decision through the issuance of a Notice of Identification, signed by the division head. In the Notice, the division head will identify a set of reasons for decision as a persuasive decision, along with an effective date, and will provide a brief commentary regarding the particular element in the reasons that is considered to have persuasive value.
Where a member is of the view that the reasoning in a persuasive decision is applicable to the case at hand, and where a member is in agreement with that reasoning, the member is encouraged to adopt that reasoning and cite the persuasive decision in their reasons for decision. If members consistently adopt the reasoning of colleagues and cite the cases in which that reasoning is expressed, this enables the divisions to build coherence in their own jurisprudence.
In appropriate circumstances, where a TO is of the view that a persuasive decision is relevant to the case at hand, the TO should draw the persuasive decision to the attention of counsel and the panel.
Where a legal advisor, when reviewing draft reasons for decision or when providing advice to members or TOs, is of the view that the reasoning in a persuasive decision is relevant to an issue at hand, the legal advisor should bring the persuasive decision to the attention of the member or the TO.
The LPDD should ensure that persuasive decisions are incorporated into the curriculum for training new members and TOs and, where applicable, form part of any customized training delivered by the LPDD.
Persuasive decisions may need to be revoked and replaced over time as circumstances change in order to ensure that they remain relevant and useful.
A division will revoke a persuasive decision through the issuance of a Notice of Revocation, signed by the division head. In the Notice, the division head will identify the persuasive decision being revoked, along with an effective date, and will provide a brief commentary regarding the reason for the revocation.
A division will revoke a persuasive decision if it is subsequently directly overturned on judicial review.
In all other cases, including where a higher court subsequently makes a finding on a particular issue in a different case that is inconsistent with the persuasive decision's reasoning on that same issue, or where a higher court disapproves of the persuasive decision's reasoning in a different case, the division will review the persuasive decision in order to determine whether it should be revoked or whether the persuasive decision can continue to be relied upon, and if so, in what manner.
Brian Goodman, Chairperson
May 7, 2009