Ashour v. Canada ( Minister of Citizenship and Immigration )
IMM-3201-97
McKeown J.
11/5/98
6 pp.
Application for judicial review of IRB, Appeal Division decision dismissing applicant's appeal from stay of deportation-Issue whether service of notice to appear on R. 33 hearing of Appeal Division sufficient if served upon applicant only when applicant has counsel on record and also whether failure to serve either applicant or counsel on record with application pursuant to R. 33 constituting reversible error-Applicant became permanent resident in 1992, convicted of criminal offences in 1994-Ordered deported in 1995-Applicant appealed decision to Appeal Division which stayed deportation order in May 1995-Stay continued for one year in November 1995-In 1997, Minister filed application under R. 33 to revoke stay-Application supposed to be served on other party-No evidence of service-In April 1997, applicant served with notice of hearing by regular prepaid post-No attempt to serve applicant's counsel on record-Notice of hearing sent to applicant's last reported address-Applicant had moved in January 1997 but did not notify Minister or Appeal Division of change of address, thereby violating condition of stay-Hearing took place without applicant or counsel-Appeal Division dismissed appeal and directed removal order against applicant be executed as soon as possible-Application allowed-Applicant had been properly served with notice of hearing when notice sent to last reported address by prepaid mail-However, in none of cases examined did Minister fail to serve counsel on record-R. 35(2) providing copy of any document served on party shall also be served on party's counsel-Case raising question of whether counsel on record meaningless designation-If opposing counsel fails to serve counsel on record with documents such as notice to appear and application, impossible for counsel on record to perform function-When party retains counsel and counsel appears on record, party entitled to believe counsel being informed of significant steps in proceeding-Application to remove stay significant step which should have been served on counsel on record-Applicant did not receive notice enabling him to determine case he had to meet (applicant received notice to appear, not application itself indicating purpose of hearing)-In light of Appeal Division's decision to dismiss applicant's appeal without respecting own R. 33 with respect to service on counsel and service of application, this constitutes violation of principles of natural justice-Immigration Appeal Division Rules, SOR/93-46, RR. 33, 35(2).