A review of the complaint found that the allegations were not within the jurisdiction of the Member complaints process. The complaint was dismissed, and the file was closed.
The Complainant was counsel for refugee claimants whose case was heard by a Member of the Refugee Protection Division. The Complainant alleged that they overheard the Member questioning the claimants a few minutes into a 15-minute break without the presence of counsel.
The Office of the Ombudsperson reviewed the complaint and found that the allegations were regarding adjudicative discretion, not conduct. The claimants did not mute their video as instructed during the break. When the Member overheard someone discussing issues from the hearing, they instructed everyone to return to the hearing room and waited for counsel to return before speaking to the claimants. Accidentally overhearing claimants talk about issues regarding their claim is a question of procedural fairness. Decisions on how to mitigate procedural fairness issues as they arise are matters of adjudicative decision-making.
The Ombudsperson therefore recommended to the Chairperson that the allegations be dismissed as they do not fall within the scope of the Procedures for Making a Complaint about a Member (the Procedures). The Chairperson agreed with the recommendation.