The complainants were refugee claimants whose joint claim was heard by a member of the Refugee Protection Division (RPD). The claim was heard remotely via videoconference.
The female claimant experienced a seizure during the first sitting of the hearing. The complaint alleged that the member’s response to the medical emergency was inappropriate and insensitive. The member questioned on whether the hearing could continue, while the female claimant was awaiting the arrival of medical emergency personnel.
The complaint alleged that the member prejudged the refugee claim, denying the complainants a fair hearing. Specifically, the member’s behaviour indicated that she did not believe the female claimant was actually having a medical emergency. From this, flowed the member’s rejection of the refugee claim, which was based in part on the persecution the female claimant had allegedly suffered due to her medical condition.
The complaint also alleged that the member did not take the complainants’ privacy into account when suggesting to continue the hearing while IRB security officers were present in the hearing room. Further, the complaint alleged the member showed a lack of understanding of the hearing process by proposing to continue with the hearing when neither of the claimants could have been expected to follow it.
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 most of the allegations were within scope and referred them to the Director of the Office of Integrity (the Director) for investigation. The allegation that the member had prejudged the refugee claim was not referred for investigation because the Chairperson determined that it was adjudicative in nature and related to the member’s decision, not to the member’s conduct. It was not within scope of the Complaints Procedures. The proper remedy to address allegations that a member has prejudged a refugee claim is through the appeals process before the Refugee Appeal Division or judicial review at the Federal Court, as applicable. This approach is based in the legal requirement that members’ adjudicative independence cannot be fettered.
The member was invited to provide the Director with a response to the complaint and subsequently provided written comments, which included an apology. The member wrote in her response that she “apologized from the bottom of [her] heart”. The Director explored whether the complainants would accept the member’s apology in resolution of the complaint. Ultimately, the complainants did not accept the apology and an investigation was undertaken.
During the investigation, a new allegation was raised, namely that the behaviour of the member spoke to a manifestation of systemic racism or individualized racism against the complainants.
The Director listened to the audio recording of the proceeding, and reviewed the parties’ submissions. The Director prepared a draft investigation report containing preliminary findings of fact and analysis, and provided both parties an opportunity to comment on the report in writing and discuss any comments with him by telephone. Both the member and the complainant provided written submissions on the draft report. The Director then prepared a final investigation report.
In the investigation report, the Director concluded that there was a breach of the Code of Conduct for Members of the IRB (Code of Conduct). The Director concluded as follows:
- After the female claimant suffered a seizure, the member suggested moving forward with the hearing. She did so because she wished to conclude the hearing in one sitting, since this would result in a quicker decision for the claimants on their refugee claim, and since efficiency is part of a member's duties. The member did not offer an expression of empathy or concern for the female claimant, nor did her conduct reflect an understanding or acknowledgment that the incident might also have impaired the principal claimant's ability to continue with the hearing. The member did not demonstrate the degree of respect and sensitivity that the particular circumstances called for, and in this regard her conduct fell short of the expectations set out in the Code of Conduct for Members of the IRB.
- The allegation that the member failed to consider the complainants' privacy by continuing with the hearing is unfounded. Refugee hearings are held in private and it would not have been appropriate to continue the hearing while others were in the room. However, the member did not continue the hearing. It would have been entirely speculative to issue a conclusion on what could have or would have happened, had the hearing continued. A review of the audio recording does not show that any private information was discussed or disclosed while the security officers or medical personnel were in the room.
- The allegation that the member demonstrated a misunderstanding of the hearing process is not within scope of the Complaints Procedures. The question of whether it would have been a reviewable error for the member to proceed with the hearing when one or both of the claimants would not have been in a position to participate, relates to the exercise of the member's adjudicative discretion. This question does not relate to member conduct.
- The allegation regarding racism and discrimination is unfounded. An allegation about racism or discrimination at the IRB - whether systemic or individualized – is taken very seriously. In this case, the complainants did not submit evidence, expert opinion or other information to substantiate their allegation. The member made submissions about how she had personally experienced being underrepresented and stereotyped, and regarding her values and efforts to fight racism. There are no grounds to believe that the member was motivated by racism or discrimination against the complainants, or that the member's reaction to the medical emergency reveals systemic racism within the RPD or the IRB.
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 regards follow-up measures, the Chairperson took into account the harm caused by the member’s actions and the member’s apology. The Chairperson was of the view that the member’s apology demonstrated that the member has understood the impact of her actions and taken responsibility for them. The apology also demonstrated that the member has learned from this experience. In particular, the member promised to be more attentive during videoconferences and prioritize refugee claimants’ health and well-being above all else. The Chairperson therefore determined that follow-up measures were not warranted in the circumstances.
The Chairperson discussed the matter with the member to confirm his expectations of conduct going forward so that such an incident would not reoccur.
The Chairperson also asked the Deputy Chairperson of the RPD to examine how best to implement further guidance to members about handling emergency situations that arise during a hearing.
As a result, the following steps were taken: Coordinating Members contacted existing RPD members to provide them with additional guidance on managing emergency situations during hearings, and the Deputy Chairperson instituted mandatory training on this subject as part of the RPD’s training for new members.
The complaint was founded, and the file was closed.