The complainant appeared before the member as counsel for a refugee claimant at a Refugee Protection Division (RPD) hearing.
The refugee claim was based on gender-based violence. The claimant claimed her family was subjected to discrimination and aggressions by assailants, including attacks at their home.
The complaint alleged that the member did not treat the claimant with sensitivity, was biased, and did not afford the claimant procedural fairness.
Specifically, the complaint alleged that the member used an authoritative and angry tone, and exhibited an aggressive and intimidating attitude towards the claimant, having “made up her mind on the claim” from the outset. It was alleged that the member, from the beginning of the hearing, doubted the validity of documentary evidence filed by the claimant, questioned the authenticity of a medical report, and misread the content of a doctor’s letter thereby causing significant distress to the claimant. The complaint also alleged that the member, after asking the claimant why she had returned to the house where she had been assaulted, stated that she disbelieved the claimant and refused to accept the claimant’s explanation. Lastly, the complaint alleged that the member asked questions of the claimant after the latter had become emotionally upset.
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 related to bias and to a breach of natural justice and procedural fairness, fell outside the scope of the Complaints Procedures because they were not related to the conduct of the member. The Chairperson decided that the other allegations were related to the member’s conduct and within scope. He referred those allegations to the Director of the Office of Integrity (the Director) for investigation.
The member was invited to provide the Director with a response to the complaint and subsequently provided written comments. 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. Both the member and the complainant provided written submissions. The Director then prepared a final investigation report.
In the investigation report, the Director concluded that there was no breach of the Code of Conduct for Members of the IRB (Code of Conduct) for the following reasons:
- The allegations to the effect that the member began the hearing in a confrontational or aggressive fashion, or that she was angry or spoke in an authoritative tone, were unsubstantiated. The tone and approach of the member were neutral and professional.
- It was within the member’s authority as a decision-maker to ask questions – even repeatedly – about the authenticity of documentary evidence. To the extent the member doubted the validity of reports filed by the claimant because the member was biased, the underlying basis of such an allegation would be adjudicative in nature and would not be about the member’s conduct.
- As regards the allegation that the member misread the doctor’s letter when she was reading it aloud at the hearing, causing the claimant to become upset, the member apologized to the claimant on several occasions, both during the hearing and in her reasons for decision. The member took ownership of this mistake and apologized for it in her submissions filed as part of the investigation. While the incident had negative repercussions on the claimant by causing her significant emotional distress, the error made by the member in this case was distinguishable from conduct constituting a breach of the Code of Conduct.
- It was reasonable for the member to ask the claimant difficult or delicate questions about the attack. The manner in which the questions were put to the claimant was not inappropriate, and there was no evidence to support the allegation that the member did not believe the claimant’s explanation.
- Overall, the member demonstrated sensitivity, for example by advising the claimant in advance that she had difficult questions to ask, by reassuring the claimant, and by offering to take a break when the claimant became emotional. However, there were other instances where a more reassuring approach would have been warranted. The member’s neutral tone and her direct approach to questioning could be interpreted at times as being insensitive. Further, on more than one occasion, the member repeatedly asked the same question to the claimant without providing clarification or additional detail, which could have contributed to the claimant’s unease. In her submissions during the investigation, the member acknowledged these observations and indicated she would take this feedback into account and adjust her approach to questioning.
- The member’s conduct was generally in keeping with the expectations set out in the Code of Conduct, informed by the Chairperson’s Guideline 4 – Women Refugee Claimants Fearing Gender-Related Persecution. However, the member would benefit from being more aware of how certain questions or an inquisitorial approach might have a negative impact on a claimant, and she should adjust her questioning accordingly.
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 no breach of the Code of Conduct.
Both parties were informed about the resolution of the complaint through decision letters from the Chairperson. The Chairperson stated that he was satisfied the member had not only taken note of the suggestions contained in the report, but that the member would take them into account in the context of future hearings.
The complaint was dismissed, and the file was closed.