The complainant appeared before the member as counsel for a refugee claimant at a Refugee Protection Division (RPD) hearing. The member in question is no longer an employee of the IRB.
The complaint alleged that the member interrupted the complainant and did not allow a break; did not listen to the refugee claimant; was condescending towards the claimant; responded to his own questions without letting the claimant answer; and confused the facts as a diversion tactic to tire out the claimant.
The Office of Integrity forwarded the complaint to the Chairperson for a decision on whether the allegations were within the scope of the complaints process under paragraph 5.5 of the
Procedures for Making a Complaint About a Member (Complaints Procedures).The Chairperson decided that the allegations were within scope and referred the complaint to an external investigator in order to facilitate a timelier resolution to the complaint.
The external investigator was a labour arbitrator, mediator and workplace investigator. She was formerly Vice-chair with the Human Rights Tribunal of Ontario.
Both parties were given the opportunity to discuss the matter with the investigator by telephone, to file written submissions and supplementary documentation, and to file replies to the submissions of the other party. The investigator reviewed the audio recording of the proceedings. A draft investigation report was prepared, and the parties were provided with an opportunity to comment on it. The former member did not provide any comments on the draft report; the complainant filed written comments. The investigator then prepared a final investigation report.
In the report, the investigator concluded that there was no breach of the
Code of Conduct for Members of the IRB (Code of Conduct) for the following reasons:
- Generally, the member behaved appropriately throughout the hearing.
- During questioning, the member did not lack courtesy or respect towards the refugee claimant. Given their adjudicative functions and inquisitorial role, members must have a certain flexibility – within limits – regarding the types of questions they ask and the way they ask them. A refugee determination hearing is a stressful experience. However, the member’s conduct did not unduly contribute to the stress or fatigue that the claimant may have felt.
- It was troubling that the member refused to grant a break which the complainant said she needed for health reasons. It was also troubling that the member indicated he would continue questioning the refugee claimant in the absence of the complainant, as this would have impacted the complainant’s ability to participate in the hearing and represent her client. A member’s role involves ensuring the orderly conduct of hearings, and the complainant’s conduct in this case impacted the member’s actions in managing the hearing. This incident occurred after an animated discussion between the member and the complainant, where the latter raised her voice to the point of yelling and accused the member of bias. At other times during the hearing, the member had offered to take breaks and accorded breaks when requested. The member’s refusal to accord the break did not, in itself, amount to misconduct.
- There was no evidence to support the allegations that the member confused the facts, interrupted the claimant, did not listen to the claimant, and humiliated or treated the claimant in a condescending manner. In particular:
- It was not inappropriate for the member to intervene when the claimant was emotional and having difficulty answering a question, in order to summarize his understanding of the claimant’s answer. The member’s tone was professional and courteous.
- The complainant interrupted the member, made disparaging remarks concerning the member, and failed to listen to the member’s directions. The member intervened to manage the hearing and call the complainant to order.
- A failure to listen, if supported by the facts, could possibly be the subject of a complaint. Here, the audio recording demonstrates that the member listened to the claimant’s responses. The way in which a member assesses the evidence, including a claimant’s responses, relates to the exercise of the member’s decision-making powers and is not within the scope of the complaint process.
- It was entirely within the member’s rights to ask questions to the claimant so that he could assess the refugee claim. The member did not raise his voice or ask any question that could be considered humiliating or condescending.
The investigation report was provided to the Chairperson. He was satisfied that the investigation was thorough and fair. The Chairperson accepted the conclusions in the report and found that there was no breach of the
Code of Conduct.
Both parties were informed about the resolution of the complaint through decision letters from the Chairperson.
As the member was no longer an IRB employee, remedial or disciplinary actions were not warranted under the circumstances.
The complaint was dismissed, and the file was closed.