The complainant appeared as Minister’s counsel at two sittings before the Refugee Protection Division (RPD).
The allegations in the complaint relate to lack of respect and courtesy on the part of the member towards Minister’s counsel during the hearing. The complainant alleged that Minister's counsel was directed to obtain certain documents and verify information. Minister's counsel felt that the member was treating him like his employee.
The claim involved, among other matters, allegations that the claimant should be excluded from refugee protection under Article 1F(a) of the Refugee Convention. The complainant made it clear during the proceedings that he was only intervening on the issue of whether the claimant should be excluded from refugee protection. He alleged in his complaint that the member attempted to push him into participating in other aspects of the claim.
The complainant also took exception to comments made about him by the member in his reasons for decision. He considered the comments to be unsubstantiated personal attacks on his integrity. The impugned paragraphs in the member’s decision were:
 The Minister's counsel's absolute refusal to even make an effort to follow reasonable directions from the panel in a hearing in which the Minister was a party is improper and, in the panel's view, a demonstration of contempt for the Board and these proceedings.
... The Minister[’s counsel] has apparently failed to make any efforts to carry out its duty to protect the integrity of Canada's refugee determination system.
Following the hearing, the member sent two letters requesting the Minister’s counsel to obtain or follow up regarding certain documents. Minister’s counsel complied with the first request, but took the position that he would not obtain documents with respect to the second request. The member repeated the request, noting that the Minister’s counsel "was expected to follow the panel’s direction." The complainant repeated his position, suggesting that the panel should order the claimant to obtain the information.
The Chairperson referred the following issues to the Office of Integrity for investigation under paragraph 5.5 of the Procedures for Making a Complaint About a Member (Complaints Procedures):
- the conduct of the member during the hearing and
- comments made by the member in his written decision regarding the complainant
The Director of Integrity listened to the audio recordings of the two sittings in question and reviewed the decision and the correspondence in the RPD file between the member and the complainant.
The Director of Integrity prepared draft findings of fact and analysis and provided both parties with an opportunity to make submissions.
The member submitted that the RPD makes requests of the Canada Border Services Agency (CBSA) regularly to obtain the information in question, that he had no intention of treating counsel as an employee, that he had never before encountered such a flat refusal to cooperate on the part of counsel before him, that counsel directing how he should proceed as a member demonstrated disrespect to the member, and finally that the comments in the written decision were reasonable given the circumstances and were directed at the CBSA and not counsel personally.
The Director of Integrity reviewed the submissions provided and he prepared a final investigation report. He concluded that:
- the member did not show any rudeness, impatience, lack of professionalism or disrespect during the proceedings
- the member did not push or threaten Minister’s counsel or treat him like an employee during the proceedings and
- the allegations regarding the member’s comments in the decision fell outside of the complaint process under paragraph 3.3 of the Procedures which states that "a complaint cannot be about a member’s decision". Therefore, the Director of Integrity did not make any findings with respect to those allegations
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 that the member did not breach the Code of Conduct.
Both parties were informed about the resolution of the complaint. In his decision letter of April 9, 2019, the Chairperson stated there was no merit to the allegations that the member’s conduct during the hearing was inappropriate.
With respect to the complainant’s allegations related to comments in the member’s decision, the Chairperson decided that IRB management cannot fetter a member’s discretion and independence and accepted the conclusion that the comments constituted a determination by a quasi-judicial decision-maker, which fell outside the scope of the Complaints Procedures.
The complaint was dismissed and the file was closed.