Case No. 20-001

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 created a stressful climate in the hearing room during the two sittings in question. More specifically, the complaint alleged that the member made inappropriate comments, was argumentative, interrupted the claimant while canvassing the claimant for answers, and prohibited the complainant from intervening in the hearing until it was her turn to make submissions or ask questions.

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. Neither party commented on the draft report. The investigator then prepared a final investigation report.

In the report, the investigator concluded that there was a breach of the Code of Conduct for Members of the IRB (Code of Conduct). The investigator made the following findings:

  • The member’s conduct during the hearing was troubling – even unbecoming – for someone responsible for determining refugee claims.
  • Even when keeping in mind the inquisitorial nature of a member’s role, including the fact that a member requires some flexibility to fulfill their decision-making duty, some aspects of this member’s conduct were troubling. The member lacked courtesy and respect towards the complainant and the claimant, addressing them in an aggressive tone, and making condescending and disrespectful comments. The member also fell short of his obligation to ensure the hearing was fair, orderly, and efficient. His conduct was an unnecessary burden on the process and made it unduly stressful for the people concerned.
  • On several occasions, the member asked long questions which were difficult to understand. It is not surprising that the complainant intervened to ask for clarifications, to correct what she believed to be distortions of the facts by the member, and to ensure that her client had understood those complex questions prior to answering. The fact that the complainant intervened in the middle of a question seems to have been a great source of frustration for the member. His tone was quite aggressive. It is alarming that the member ignored or reprimanded the complainant for making these interventions that were closely linked to her role as representative; its effect was to limit or discourage the complainant from intervening and representing her client. There is nothing to justify the member’s tone or condescending approach towards the complainant.
  • The member interrupted the claimant, without giving her the opportunity to fully answer some of his questions. Interpretation adds a level of complexity to communication during a hearing. However, in one instance, it was relatively clear that the claimant’s response did not fully answer the member’s question and the member could reasonably have expected the claimant to add information. The member should have given the claimant the opportunity to do so. After it was brought to the member’s attention that the claimant’s answer was incomplete, the member reacted by placing responsibility for the situation on others and failed to give the claimant a real opportunity to finish her answer.

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 a 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 founded, and the file was closed.