The complainant appeared as counsel for a claimant before the Refugee Protection Division (RPD).
The allegations in the complaint relate to the member’s lack of sensitivity when presiding over a claim which was predicated on decades of physical and sexual abuse.
The complainant alleged that by way of her insensitive questions, the member had effectively traumatized the claimant who had a history of abuse both in her home country and also having arrived in Canada. It was alleged that the member failed to acknowledge the impact of gender violence on the claimant’s actions, and that the member was judgmental because the claimant had not left the abusive relationships.
The complaint was submitted in October 12, 2017, under the former Protocol Addressing Member Conduct Issues. In accordance with paragraph 7.2 of the Procedures for Making a Complaint About a Member (Complaints Procedures), the complaint was placed in abeyance while the member was seized with the claim. Counsel then re-submitted the complaint, with additional allegations, on May 22, 2018 and asked that it be treated under the Complaints Procedures. The then Acting Chairperson determined that the complaint would be addressed pursuant to the new Complaints Procedures.
The member subsequently retired from the IRB and the claimant’s refugee claim was heard de novo and decided by a different decision-maker.
The then Acting Chairperson determined that this complaint would be referred to an external investigator pursuant to paragraph 5.5(d) of the Complaints Procedures which authorizes the Chairperson, in exceptional cases, to refer the complaint to an external investigator.
The external investigator in this case had expertise in human rights and labour law and was a former member of the Human Rights Tribunal of Ontario. The external investigator was appointed in December 2018.
The allegations related to member conduct, namely those relating to lack of sensitivity and traumatization of the claimant, were referred for investigation.
The allegations with respect to procedural fairness, bias and violations of the Charter were not referred for investigation as the Chairperson concluded that these allegations were not related to conduct and therefore fell outside the scope of the Complaints Procedures.
Although retired, the member chose to participate in the investigation.
The external investigator listened to the audio recordings of the sittings in question and reviewed the complaint and the member’s response, as well as correspondence in the RPD file between the member and the complainant.
Both the member and the complainant had an opportunity to provide additional documents, to make submissions, and to review and comment on all information received and considered by the external investigator.
The investigation report outlined members’ obligations under the Code of Conduct for Members of the IRB (Code of Conduct). The report also outlined how the Chairperson’s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution informs the interpretation and application of the Code of Conduct in such circumstances.
The external investigator concluded that the member’s conduct was generally professional and courteous throughout the hearing and that the member demonstrated consideration towards the claimant’s situation. However, despite indicia that abuse and rape trauma syndrome were likely factors in the claimant’s behavior, some of the questions posed by the member during the hearing showed a lack of appreciation of rape trauma syndrome and its impact on the claimant.
The investigator’s report concluded that some of the member’s questions had a negative impact on the claimant, were inappropriate, and were in breach of the member’s obligations under the Code of Conduct. Other allegations of misconduct were deemed unfounded, or were adjudicative questions which were outside the mandate of the investigation.
The Chairperson reviewed the investigation report. He was satisfied that the investigation was thorough and fair. The Chairperson accepted the conclusions in the report and decided that there was a breach of the Code of Conduct.
Both parties were informed about the resolution of the complaint in the Chairperson’s decision letters of May 10, 2019. The Chairperson informed them that member managers will be encouraged to consider lessons learned from this investigation to determine future training needs. In particular, the analysis done by the external investigator and the conclusions could help delineate the line between latitude for questioning by members in an inquisitorial system and members’ obligations under the Code of Conduct related to respect, dignity and cultural sensitivity and the interpretation of the Chairperson’s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution.
Following the finalization of this complaint, the Director of Integrity met with IRB managers who have responsibility for member training and policy development. In addition, this matter was brought to the attention of the Deputy Chairperson of the RPD. Steps were subsequently taken to ensure that RPD members received supplemental training on the Chairperson’s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution. Lessons learned from this complaint were incorporated into the training program for RPD members.
The Chairperson concluded that no further actions were required as the member had retired.
The complaint was founded and the file was closed.