Background
Osman Sankoh, a Sierra Leone citizen, entered Canada on November 20, 2023, and claimed refugee protection. The Refugee Protection Division (RPD) rejected his claim on February 10, 2025, finding he was neither a Convention refugee nor in need of protection, with credibility being the determinative issue. His subsequent appeal to the Refugee Appeal Division was dismissed on March 17, 2025, for lack of jurisdiction. On February 18, 2025, the IRB transmitted the RPD’s decision and notice to his counsel via the My Case secure electronic portal. Sankoh filed his application for leave to seek judicial review on March 12, 2025—22 days after the decision was served on his counsel.
The respondent argued that Sankoh failed to comply with the 15-day deadline in paragraph 72(2)(b) of the Immigration and Refugee Protection Act because the application was filed outside the statutory window. Sankoh argued that he should be deemed to have received the decision on February 28, 2025 (ten days after it was transmitted), citing Federal Courts Immigration and Refugee Protection Rules provisions. He further contended that the 10-day mail presumption applied to electronic service.
The Court’s Holding
Justice Lafrenière dismissed the application for leave to seek judicial review as untimely. The court established two key holdings: First, service of the decision on counsel of record constitutes effective notice to the applicant. The common law principle that notice to a solicitor is notice to the client, combined with subsection 38(3) of the Refugee Protection Division Rules requiring documents to be provided to counsel when a person is represented, means that service on counsel is service on the client. The court rejected the interpretation that actual personal notification to the applicant would be required, finding that such a rule would be contrary to Parliament’s intent and would allow counsel to indefinitely extend deadlines by withholding information.
Second, the court held that the applicant was deemed notified on February 18, 2025, when the decision was electronically transmitted to counsel via My Case. The court noted that while the Income Tax Act contains an express statutory presumption for CRA’s My Account portal, no such provision exists in the IRPA or RPD Rules. However, the IRB’s own practice notice and My Case user guide indicate that documents are considered received when transmitted to the secure portal. The IRB Registry Officer’s statement created a presumption that the decision was received on the transmission date. Sankoh failed to rebut this presumption with contrary evidence. The Federal Courts Immigration and Refugee Protection Rules provisions regarding 10-day mail delays applied only to documents sent by ordinary mail pursuant to those Rules, not to originating documents served under the IRPA.
Key Takeaways
- Service of an immigration tribunal’s decision on counsel of record constitutes effective legal notice to the applicant, and the notification clock begins on that date.
- Electronic transmission via the My Case portal starts the 15-day deadline immediately—there is no 10-day mail delay grace period for electronic service under the IRPA.
- Applicants bear the burden of rebutting the presumption that an electronically transmitted document was received on the transmission date with evidence showing otherwise.
- A 15-day filing deadline is strict; no extension of time to file is presumed, and applicants must affirmatively request such relief if needed.
Why It Matters
This decision clarifies a procedural issue that practitioners frequently encounter in immigration judicial review matters. By holding that notification to counsel starts the statutory clock, the court closed a potential loophole that could have allowed indefinite delays if applicants could wait until personal knowledge was established. This ruling protects the statutory purpose of the 15-day deadline—ensuring finality and preventing the perpetual uncertainty that would result from extended filing windows. For lawyers representing refugee claimants and other immigration clients, the decision is a critical reminder that the date a decision is transmitted electronically via My Case is the date that matters for deadline calculation, not the date the client actually reads it or is told about it.
The decision also aligns with broader judicial review jurisprudence limiting the ability to manipulate procedural deadlines. As Justice Gascon noted in an earlier decision cited approvingly by the court, the deadline cannot be extended merely because an applicant remains uninformed—notification to counsel is sufficient. Practitioners must now treat My Case transmission as the key event triggering the clock, and clients should be advised at the outset of representation to monitor the portal closely or delegate monitoring to counsel to avoid missing the deadline.
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