The complainant appeared before the member as counsel for a refugee claimant at a Refugee Protection Division (RPD) hearing. The member in question is no longer an employee of the IRB.
The refugee claim was based on gender-based violence, namely violence suffered at the hands of the claimant’s former partner.
The complaint alleged bias on the part of the member because of questions posed to an observer who was a person of colour, prior to the start of the hearing. It was also alleged that the member made a comment that reflected a lack of understanding and knowledge about diversity of African cultures. It was further alleged that the member told counsel to control the claimant’s emotional behaviour, and in doing so, failed to consider the challenges and difficulties that women who have experienced gender-based violence may experience during a hearing.
The Office of Integrity forwarded the complaint to the Chairperson for a decision on whether some of the allegations were outside 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 were within the scope and referred the complaint 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 it. Written submissions were received from the complainant. 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 former member’s comments during the hearing about familiarity with African culture were not inappropriate. They were made with the goal of calming the claimant, empathizing with her, and building trust.
- While members have a responsibility to ascertain the identity of hearing observers, if a member were to ask only a racialized hearing observer whether they are a refugee (and not ask the question to a Caucasian hearing observer), such a comment would be inappropriate and could be perceived as disrespectful or discriminatory. Here, the alleged question was not on the record and based on the evidence that the complainant provided, it could not be objectively confirmed that the comment was made. It was confirmed on the record that when the hearing began, the member asked about the identification of both observers and the nature of their presence.
- As regards the allegation that the member failed to consider the challenges and difficulties that the claimant experienced during the hearing, the member’s alleged comments that counsel should “control” her client’s behaviour and should not “encourage” her client’s behaviour by requesting breaks are not captured by the audio recording or transcript. Based on the evidence provided by the complainant, it could not be confirmed that the alleged comments were made.
- Although the member could have been more sensitive to the claimant’s need for breaks during the hearing by according breaks more frequently or willingly, the member’s management of the hearing did not lack sensitivity. The member was sensitive to the trauma experienced by the claimant and to the difficulties faced by the claimant in the hearing room. When the claimant became emotional, the member reassured her in a gentle tone, tried to put her at ease, and informed her in simple language that she could request a break if she felt one was needed.
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 complaint was dismissed and the file was closed.