In the recent case of Zhen Xiang, 2013, FC 256, lawyers from Levine Associates argued that the Board member had erred by failing to put the claimant on notice, prior to the hearing, that it had concerns about the accuracy of the photograph in the claimant’s Resident Identity Card. The Court noted that the Screening Form, which was provided to the claimant, made no mention of this issue and therefore prejudiced the claimant’s rights.
Recently the Board has implemented a number of important and unpublished practise changes. A case in point is the Board’s decision to abandon the practise of providing claimants with a Screening Form prior to the hearing. Screening forms set out issues that the Board foresees will be canvassed at the hearing. It would appear the reason for cessation of the practise is not for any legal reason but simply a result of the lack of funding for support personnel to process such forms.
In light of the decision in Xiang, we foresee the lack of “issues disclosure” by the Board prior to the hearing, as an excellent ground for Judicial Review on any new case involving unique issues. The key for such Judicial Reviews will be to ensure counsel at the hearing properly lay the ground work for such an appeal. Lawyers at Levine Associates have all been provided with training on this issue and we expect it to bear fruit as cases move through the system.